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Undue delay in trial is good ground for bail in non-bailable offence
Captain (Rtd) Nurul Huda (Appellant)
Before Mr. Justice M Reza Chowdhury, CJ,
Mr. Justice Md Fazlul Karim, Mr. Justice
SJR Mudassir Hussain and Mr. Justice
Abu Sayeed Ahammed.
Date of judgement : December 1st, 2002.
Mohammad Fazlul Karim J: This appeal by leave is to consider as to whether
the appellant could be enlarged on bail being in custody for almost six
years without any trial. As the further proceeding of the case has been
stayed by the High Court Division in Criminal Revision No. 123 of 2000
on an application filed by another co-accused, and there is no chance
of early disposal of the said Revision inasmuch as the trial of the case
being not concluded within the specified time of 360 days from the date
on which the case was received for trial, the appellant may not be kept
in custody for an indefinite period as under section 339C(4) of the Code
of Criminal Procedure. The appellant is entitled to be released on bail
and that the High Court Division failed to consider while refusing the
prayer for bail that the appellant has been suffering from enlarged prostate
gland and problems in his urinary track and also suffering from mental
tension and depression for being in custody for such an inordinate long
time without trial.
This appeal is directed against the judgment and order dated 4-6-2001
rejecting the prayer for bail of the appellant passed by the High Court
Division in Criminal Miscellaneous Case No. 1965 of 1997 arising out of
Ramna PS Case No.93 dated 21-10-1996 under sections 149/448/326/307/302/34
of the Penal Code.
Though the respondent State has not filed any concise statement, for end
of justice we have heard Mr. Abu Kowser Dabirushan, the learned Deputy
Attorney-General who appeared for the State. He has submitted that the
allegations of serious nature of commission of non-cognizable offence
having been made out against the appellant he is not entitled to bail
as the same is restricted under the provision of section 497 of the Criminal
Procedure Code. The learned Deputy Attorney-General has further submitted
that the provision of section 339C(4) of the Code of Criminal Procedure
do not confer any right upon the accused to be enlarged on bail for non-completion
of the trial within the specified time. As the trial has been held up
because of the stay order from the High Court Division there is no fault
of the prosecution.
The basic idea of bail is release of a person from the custody of police
and to deliver him into the hand of surety, who undertakes to produce
him in court whenever ordered to do so. In the case of an offence punishable
with death or imprisonment for life the mere heinousness/grievousness
of the offence is not by itself a circumstance sufficient to take away
the discretion of a court to grant bail in deprivation of the accuseds'
fundamental right to be freed. But in addition thereto, there must also
exist reasonable grounds for believing that the person seeking bail has
been guilty of such an offence.
When the court is called upon to exercise its judicial discretion it should
not proceed upon any prior assumption that in all cases where an offence
punishable with death or imprisonment for life is alleged, bail must,
as a matter of course, be refused, nor can there be any Rule of practice
on the basis of which such a discretion can be judicially exercised. Thus
the discretion to enlarge on bail has to be exercised in a judicial manner
with due regard to the circumstances of each case, without any tendency
of unnecessarily affecting the liberty of the persons accused of criminal
Section 497 of the Code of Criminal Procedure provides in a positive sense
of allowing bail to any person arrested being accused of any non-bailable
offence with a rider clause in a negative sense not to allow bail with
qualifying words that "if there appears reasonable ground of believing
that the accused has been guilty of an offence punishable with death or
imprisonment for life". But the proviso to sub-section (1) of section
497 makes an exception that bail in the later case could be allowed on
the ground of tenderness of age, womanhood, sickness of infirmity.
Thus under section 497 of the Code of Criminal Procedure the court would
enlarge an accused of non-bailable offence unless it appears to it that
there is reasonable ground of believing that the accused is guilty and
even then the proviso makes certain exception in certain specified cases.
However, the Rule of general law laid down in section 497 of the Code
of Criminal Procedure is not strictly binding on the High Court. The question
of granting or refusing bail depends upon the particular circumstances
of each case and the mere fact that an offence is punishable with death
or life imprisonment is not by itself sufficient to refuse bail under
section 498 of the Code of Criminal Procedure.
The powers to release an accused person on bail under section 498 of CrPC
are virtually unlimited and the question is entirely one of discretion
bearing in mind the general principle that in refusing bail it is generally
necessary to see whether there are reasonable grounds for believing that
the accused has committed the offence and whether he is likely to tamper
with evidence during his enlargement on bail.
As regards the submission of the learned Deputy Attorney-General regarding
the scope of section 497 of CrPC on an application for bail, it appears
from the above discussion that the power conferred under section 498 of
the CrPC on the High Court Division or the Court of Sessions are not controlled
by limitation contained in section 497 CrPC. There is nothing in section
496 and 497 CrPC to show that these sections were intended to apply only
to the investigating police or the court holding enquiry or trial. The
wording of those sections makes it clear that it is intended to contain
the entire law relating to the granting or refusal of bail to an accused
which had to be applied by all courts alike.
Section 339C(4) of the Code of Criminal Procedure as amended reads as
(4) If a trial cannot be concluded within the specified time, the accused
in the case if he is accused of a non-bailable offence, may be released
on bail to the satisfaction of the court, unless for reasons to be recorded
in writing, the court otherwise directs.
Interpreting of the imperative or directory nature of any enactment remains
to be considered what intention is to be attributed to the same on question
necessarily arising out of its enactment and on which it has remained
silent. Thus when a statute requires that something shall be done in a
particular manner or form expressly declaring what shall be the consequence
of non-compliance the requirement is regarded as imperative or mandatory.
On perusal of the provision of section 339C(4) of the Code of Criminal
Procedure it appears that if the trial has not be concluded within the
specified time i.e. 360 days from the date on which the case was received
for trial the accused of non-bailable offence may be released on bail
to the satisfaction of the court unless the court otherwise direct in
writing. Thus the section provides that for failure to complete the trial
within the specified time a right is accrued to the accused of a non-bailable
offence which has mandatory effect to be released on bail. The sub-section
provides for the consequence of release on bail if the trial is not concluded
within specified period but the words "Unless for reasons to be recorded
in writing the court otherwise directs" are designed to be exercised
in exceptional circumstances to deprive the right to be enlarged on bail
on very cogent reasons, the reasons including the strong possibility of
absconding or tempering with witnesses or hindering the prosecution of
the trial etc.
In the instant case admittedly the period of completion of trial expired
long back but the High Court Division in its impugned judgment has ventured
to lay down certain general assumptions by way of exception to law by
holding that "A speedy trial in all circumstances, however, is not
a hard and fast Rule. Nowadays trial cannot be expedited due to varieties
of reasons, such as, increasing number of cases, seeking of adjournments,
collection of witnesses for production before court and other procedural
hurdles. Delay in holding trials in all cases and circumstances is no
good ground for granting bail to an accused person specially when he stands
arraigned of a crime punishable with death or imprisonment for life."
The said assumption we are constrained to hold, are not only contrary
to the provision of law but also to the established principle of law in
granting bail and the High Court Division has not assigned any reason
refusing bail which is germane to the fact of the case.
On perusal of section 339C(4) we are of the view that even in a non-bailable
offence accused is entitled to be enlarged on bail unless the court decides
otherwise assigning reasons which are relevant to the fact of the case.
In that view of the matter the High Court Division acted illegally in
incorporating certain extraneous assumptions foreign to the concept of
the sections 339C(4) and 497 of CrPC and the same as well could not be
contemplated thereunder in the facts of the instant case in order to limit
the exercise of discretion in granting bail to an accused.
Section 497 also provides for illness as a ground for enlarging on bail
and the appellant has asserted that he has been suffering from enlarged
prostate gland and problems in his urinary track and he is also suffering
from mental tension and depression being an accused languishing in jail
custody for over 6 years since 22nd October 1996 but the same has not
been denied by the prosecution in this appeal.
In the instant case, the charges has been framed on 4th October 1999 on
the basis of a chargesheet submitted in the case on 30th July 1997 and
first information report was lodged on 21-6-1996 over an occurrence dated
14th August 1975. It may be mentioned here that it appears from the certified
copy of the order sheet of the court below that on the basis of order
of stay in criminal revision No. 123 of 2000 all further proceeding of
the case has been stayed pursuant to an order of High Court Division dated
10-5-2000. Although the learned Deputy Attorney-General submits that there
is no stay of further proceeding of the case against the appellant but
since 10-5-2000 no step has been taken by the prosecution either to get
the said criminal revision disposed of or to make the case of the appellant
separated in order to continue with the trial of the case. Undue delay
in holding trial, in the facts and circumstances, due to the prosecution's
pre constination may be considered as valid ground for granting bail.
Over and above, the prosecution could not give plausible reason for such
inordinate delay in proceeding with the case and these circumstance can
be considered as a ground for granting bail to an accused even in the
Besides inordinate delay in prosecuting the trial of the case and the
provision of section 339C(4) of the Code of Criminal Procedure the fact
that the appellant has been suffering from enlarged prostate gland and
problems in his urinary track and from the illness for long as well attracts
the provision of proviso to section 497 CrPC for consideration to enlarge
the accused on bail pending trial of the case.
In view of the above, we are inclined to enlarge the accused appellant
on bail till disposal of the Metropolitan Sessions Case No 8 of 1999 pending
in the Court of Metropolitan Additional Sessions Judge, First Court, Dhaka.
The trial court, however, may cancel the bail on any tested ground as
to misuse of bail as it may deem fit and proper. The accused appellant
shall, however, take permission of the trial court in the event of any
compelling occasion/circumstances necessitating to leave the country.
Accordingly, the impugned order of the High Court Division is set aside
and it is ordered that let the accused appellant Capt. (Retd) Nurul Huda
be enlarged on bail to the satisfaction of the Deputy Commissioner, Dhaka,
if not wanted in connection with any other case.
In the result this appeal is allowed.
Khandakar Mahbub Hossain, Senior Advocate instructed by Md. Aftab Hossain,
Advocate on Record for the appellant. Abu Kpwser Dabirushan, deputy Attorney
General, instructed by Sufia Khatun, Advocate on Record for the respondent.