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January 11, 2004

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A stupendous error?

Anisur Rahman

The High Court Division of the Supreme Court has again come under fire on the bail scam. The incident of admitting bail defying the stay order of the Appellate Division by the High Court Division created a mist of confusion of the power of High Court Division and the dignity of Appellate Division of the Supreme Court. One 'Mobile Kader', accused in a murder case was granted bail by the High Court Division on 15 December last year. But earlier on 14 December the Appellate Division stayed the bail order issued by another bench of the High Court Division. The Appellate Division had also ordered to hear the rule in the same bench which admitted the bail earlier. Despite the stay order of the AD, another bench of the HCD has granted bail to Mobile Kader.

The bail scam
We became silent spectator when Khaza Habib got bail from the High Court Division few days ago after getting 27 years of imprisonment by a lower court. Saiful Islam who got life term imprisonment in Gopal Krishna Muhuri murder case was released on bail from the HCD on 17 June. AC Akram was admitted to ad interim bail for his ill health by the High Court Division on 19 November. Engineer Kazi Mahbubuddin Ahmend who got life term imprisonment for killing of his wife got bail from HC on 27 November. (Prothom Alo 22 December)

Let us turn to the provisions of bail under the Criminal Procedure Code. An examination of the terms of sections 496,497 and 498 of the Criminal Procedure code reveals that they constitute a complete code for admission of bail to accused person. Section 496 of the code deals with bailable offences. That means which offences are declared bailable by the code itself in the schedule. Section 497 deals with non bailable offences and authorises the court to release accused person on bail with the qualification that such person shall be released on bail if there are reasonable grounds for believing that they are not guilty of offences punishable with death or transportation for life. An exception has been made in the case of person under the age of sixteen years or any women or a sick or infirm person. And finally section 498 gives inherent/unfettered power to the High Court Division to admit bail before arrest. That is the anticipatory bail. Let us left the matter of anticipatory bail because there are horde of debate that how a person is admitted to bail who is not in the custody at all.

The plain reading of the provisions reveals that admission of bail is discretionary power of the court. But the court must follow the procedure of sections 496, 497 and 498 of the Criminal Procedure Code while admitting bail. Mobile Kader is an accused of Kader murder case. Therefore his bail petition seems not maintainable under section 498. Moreover his bail order was stayed by the Appellate Division. So how he is admitted to bail? There may be two reasons for this bail scam, a) laxity of the Attorney General's office, b) personal interest of the concerned judges which should not be shelved.

The public prosecutors' office (lower court) and the Attorney Generals' office (Supreme Court) conduct the cases on behalf of the government. This is an institution which should be independent in its works. But successive government has politicised the institution and uses it for political gain. There is allegation that persons loyal to government are appointed in the posts of Public Prosecutor/Attorney General which our law minister concedes recently (Prothom Alo 5/6 January ). For the very reason they entrust their service to the person loyal to government. According to some, it is not very hard to win a case bribing the government prosecutor. There is spate of allegations of corruption against them. No procedure have developed here to submit the statement about personal wealth of the person before appointed as the Public Prosecutor/Attorney General. It can conceive that the government prosecutor showed less interest in this case which enable the accused to get bail. The reason behind this reluctance of the concerned law officer should be investigated. As well as how the case was mentioned in the cause list just after one day of the Decision of AD is also should be investigated.

It is alleged that indirect political influence in appointment of Supreme Court judges instigates them to act on behalf of the political party in power (Shahidur Rahman defend himself before the Supreme Judicial Council that the witnesses gave false statement against him to implicate him politically. His statement reveals that he is appointed politically and his opposition is trying to implicate him in a corruption scandal Prothom Alo 8th January). Why the judges of the concerned bench of HCD have showed so much interest in admitting bail to "Mobile Kader" whose bail order issued by another bench was stayed by the Appellate Division? It is reported that the stay order of the AD was mentioned in the record of bail order. So could the judges claim that they were oblivious of the matter?

Whether HCD commits contempt
The High Court Division is obliged to comply with the decision of the Appellate Division under Article 111 of the Constitution. Any deviation from this constitutional obligation may be considered as contempt of court. Here, there are three grounds for which one can accuse the concerned High Court Division Bench for contempt of court, a) disobedience to the order of the Appellate Division, b) interference with the due course of justice and c) violation of dignity as well as the supremacy of the Appellate Division.

Ignorance of Appellate Division's stay order by the High Court Division is not consistent with its constitutional duty. It is not a nugatory error. Neither the HCD can claim that it was oblivious of the decision of AD nor it should be. How the HCD can decline that it does not violate the dignity and supremacy of the AD? However, the burden of proof lies on the HCD.

Concluding remarks
We do not expect any confrontation between the HCD and AD of the Supreme Court. We expect HCD more cautious and sincere in its works. Any antagonism between the HCD and AD will lead us to lose our hope on the highest judicial organ of the country. The government let not embroil the highest court, the last resort to justice in. However the matter of admission of bail by the HCD should not left in a limbo. The government rightly decided to remit the matter to the Chief Justice. Consequently, we have to wait for the decision of the Chief Justice.

Anisur Rahman is Assistant in Charge of the Law Desk, The Daily Star.


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