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July 20, 2003 

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Privilege of MP doesn't include total immunity from judicial formalities

Appellate Division (Criminal)
Bangladesh Supreme Court
KM Obaidur Rahman (Appellant)
State (Respondent)
Before Mr. Justice M Amin Choudhury, CJ, Mr. Justice M Reza Chowdhury, MR. Justice Md Ruhul Amin and Mr. Justice Md Fazlul Karim.

Mahumudul Amin Chowdhury CJ: This appeal by leave is against judgement and order dated 22nd day of August, 2001 passed by the High Court Division in Criminal Miscellaneous Case No. 6218 of 2001 which arose out of Sessions Case No. 7 of 1999 now pending before the learned Metropolitan Sessions Judge, Dhaka which is corresponding to Lalbag PS Case No. 11 (II) 75 under sections 120B/302/448/449/109/34 of the Penal Code. The High Court Division by judgement dated 22nd day of August, 2001 summarily rejected the appellant's prayer for bail.
The short fact leading to this petition is that this appellant was arrested by the police on 29-9-1998 in connection with aforesaid Lalbag PS Case which is in connection with the murder of four national leaders inside the jail on the night following 3-11-1975. Thereafter on completion of investigation police submitted charge sheet against this appellant along with others who are now facing trail in the aforesaid Sessions Case and by this time 7 witnesses have been examined. The appellant moved the High Court Division in the aforesaid Miscellaneous Case praying for bail, which was rejected by a Division Bench of the High Court Division. Leave was granted by this Division to consider the following:
"Mr Khandker Mahbubuddin Ahmed, learned Counsel appearing on behalf of the petitioner, submits that the case is pending before the learned Metropolitan Sessions Judge for about 930 days from the date of receipt of record by that court and out of 75 witnesses only six witnesses have so far been examined. The learned Advocate submits that the trial started before the learned Sessions Judge in November 1999 and it is still continuing. He also submitted that the prosecution is not taking any effective step for producing and examining their witnesses and this petitioner is languishing in Hazot for no fault of his own. In such a case when the prosecution failed to complete the trial within the stipulated time the court below may very well consider enlarging the petitioner on bail. Mr Khandker submits that the petitioner is seriously ill and at the moment he is in Bangabandhu Sheikh Mujib Medical University Hospital. It is further submitted that from inside the custody the petitioner fought the last parliamentary election from Faridpur 2 Constituency and he came out successful and in such a situation he may be allowed to participate in the parliamentary activities and the petitioner will not misuse the privilege of bail if granted. Mr Khandker submits that out of 75 cited witnesses no one has directly implicated the petitioner for any offence punishable under section 120B/302 of the Penal Code or of any other law and in such a situation may be favoured with bail".

We have gone through the available materials and it appears that the case was received initially by the learned Sessions Judge, Dhaka on 24-11-1998 and then the same was sent to learned Metropolitan Sessions Judge on 12-1-1999 and charge was framed on 12-10-2000 and since then only 7 witnesses have been examined out of 75 cited witnesses. It appears that on several occasions the proceeding was stayed at the instance of one or the other of the accused persons including the appellant and, as such, the appellant is not entitled to any benefit as provided under section 339 (4) of the Code of Criminal Procedure. Furthermore, in the petition before this Division or even before the High Court Division it has also been mentioned that over 930 days have passed since receipt of the record by the trial Court but the detail of time consumed has not been given which is the responsibility of the appellant for getting the advantage out of it. Section 339 (2) provides that such a trial shall be concluded within 360 days from the date on which the case is received by the learned Sessions Judge.
Here in the present case the case record was received by the learned Metropolitan Sessions Judge on 12-1-1999 and he failed to complete the trial with that period. Sub-Section (4) of this section provides that if a trial could not be concluded within the specified time the accused in the case if he is accused of non-bailable offence may be released on bail to the satisfaction of the court unless for the reason recorded by the court otherwise direct. Admittedly, the trial Court failed to dispose of the case within the stipulated time because of certain stay orders obtained by one or other accused persons including the appellant. For getting the benefit of section 339C(4) of the Code the accused must come with a definite case that he was not instrumental in delaying the disposal of the case. But here in the present case it appears that this appellant and other accused persons were instrumental in delaying the disposal of the case within 360 days as provided under section 339C(2) of the Code of Criminal Procedure. So, in that view of the matter though the case was received on 12-1-1999 the appellant is not entitled to any advantage of sub-section (4) of section 339C of the Code and we find no force in the submissions made by the learned Advocate for the appellant.
The next ground is that the prosecution though cited 75 witnesses in the charge-sheet they have only examined 7 witnesses so far and out of 7 witnesses none has implicated the appellant in the offence alleged. None of the witnesses deposed that this appellant was a conspirator in the commission of murder of four national leaders in the jail on the fateful night. It is also submitted that the prosecution is not taking any step for speedy and early disposal of the case and they are not producing witnesses as required under the rule. They are only producing one or two witnesses as required under the rule. They are only producing one or two witnesses on a date and the learned Sessions Judge is also not taking any effective step for examination of the cited witnesses.
It is true that the case is proceeding at a snail's pace and conduct of the prosecution indicates that they have lost interest in the early disposal of the case. We had the privilege of going through the case diary and it appears that almost all the witnesses are from this metropolitan area and in such circumstances we find no reason why the prosecution failed to produce the witnesses before the trial Court by now. And why the trial Court also failed to secure attendance of the cited witnesses, most of whom are very much known in the political arena of our country and some of whom were even Ministers in the last Cabinet. From the conduct of the prosecution and the way the trial Court is proceeding with the trial led us to hold that the case has been dumped in the no man's land and the way the case is being proceeded with it can very well be presumed that the trial will continue for many more years to come which cannot be appreciated.
Mr Mahbubey Alam, learned Advocate for the prosecution submits that at least 5-6 witnesses in their statement recorded under section 161 of the Code of Criminal Procedure have disclosed the complicity of this appellant for an offence punishable under section 120B of the Penal Code which will be looked into at the time of trial.
It is true that some witnesses may have named the appellant in their statement recorded under section 161 of the Code of Criminal Procedure but why the prosecution is not producing and examining them before the trial Court and what is preventing the prosecution in examining those vital witnesses? This attitude indicates that the prosecution had probably lost interest in the case for reasons best known to them. However when, according to prosecution, at least 5/6 witnesses have implicated the appellant's simply on the ground that there is no direct evidence against this appellant we are not inclined to enlarge the appellant on bail.
Mr Khandaker Mahbubuddin Ahmed, learned Advocate, submits that admittedly the appellant is aged 63 years and suffering from various ailments and at the moment he is in Bangabandhu Sheikh Mujib Medical University Hospital's prison cell for quite a long time. He submits that earlier also he had to be transferred to the hospital due to his serious ailment. This contention of the learned advocate has not been controverted from the sides of the prosecution.
Mr. Mahabubuddin Ahmed also submits that this appellant in custody has been elected to the Jatiyo sangshad and he may be enlarged on bail to perform his national obligations. But being an elected Member of Parliament cannot be a ground of enlarging an accused on bail. We find no force in the submission of Mr Khandaker in this respect.
But when the appellant is admittedly in a frail condition of health and is in prison cell of the aforesaid hospital simply on that ground we are inclined to consider enlarging him on bail and not on any other ground as pressed aforesaid. But it must be understood that being a Member of Parliament on being enlarged on bail he cannot avoid appearance before the trial Court on the date of trial simply on the plea that the Parliament is in Session. When there is a session of the Parliament on any date fixed for trial the appellant should not claim any privilege as being a Member of the Parliament and should attend the trial so that the same may proceed in accordance with law. If on this ground the appellant seeks any adjournment that should be rejected outright by the trial Court and that court will be at liberty to cancel the bail of the appellant and take him into custody.

In view of the aforesaid we are inclined to allow the appeal. The appeal is accordingly allowed.

Khandaker Mahbubuddin Ahmed, Senior Advocate (Mainul Hosein, Advocate with him) instructed by Md Aftab Hossain, Advocate-on-Record For the Appellant.
AF Hassan Ariff, Attorney General, (Md Ataur Rahman Khan, Deputy Attorney General with him) instructed by Sufia Khatun, Advocate-on-Record For the Respondent.
Mahbubey Alam, Senior Advocate on Behalf of Serajul Huq. Senior Advocate M Farooq Ahmed, Anisul Huq and Mosharaf Hossain, Advocates Special appointment by the Government.

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