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September 19, 2004 

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Your Advocate

Q: I am junior lawyer practising at a local Bar. I read you column regularly. I think, similar columns should be introduced in Bengali newspapers also. Because Bengali newspapers are available everywhere and understandable by all. Sir, my question as lawyer is: clients often come to us with papers for suggestion whether anticipatory bail can be obtained from the High Court Division. Now-a-days many people are getting anticipatory bail from the High Court Division and there has been a tendency in the general people to avoid local courts and risk of surrender. And many are trying to take chance before the Higher Court. But a case in High Court Division involves huge expenses. There was a case in which I advised the clients not to go to High Court, as there was no chance of anticipatory bail in that case. But after some weeks the clients came to me and said they obtained anticipatory bail from the High Court. I felt embarrassed. My impression was that only political VIP's are entitled to get anticipatory bail. Sir, I want to be clear what are the real grounds on which anticipatory bail is granted? Under what section of law? Is the Sessions Judge Competent to grant anticipatory bail? I am looking forward to your answer. Thanking you.
Yours Sincerely,
Md. Zakir Hossain Dewan Advocate

Your Advocate: It is really embarrassing for a lawyer if the clients whom he gave negative opinion get the relief through another lawyer. The embarrassment, however, may be minimised if the advice given was legally sound and not perverse. We as lawyers give our opinions not guarantees. It is, therefore, not unlikely that court might hold a different view and grant relief. It is nonetheless a bit embarrassing as against the client but not so as against the legal community and the conscience of the advising lawyer. What is imperative for a lawyer is to take care that the advice given is well-grounded in law.

Now let us turn to the specific questions you have asked. Anticipatory bail is now well known to the general people. This is a special privilege granted to an accused or potential accused in connection with a specific case before being arrested or put into custody. Therefore, there is nothing wrong for any accused still at large to expect bail with a view to avoiding arrest and humiliation in custody. But unfortunately each and every case is not fit for anticipatory bail as it is an extra-ordinary relief granted in exceptional circumstances. There are basic principles enunciated by the superior courts for granting anticipatory bail. We must go by the legal principles while advising the clients or receiving briefs for such bail.

The jurisprudence of anticipatory bail is relatively of recent origin. In our country there is no express provision of law at the moment providing for anticipatory bail. It has developed through judicial expositions particularly of Section 498 in relation to Section 497 of the Cr.P.C. In India a new section (Sec. 438) is introduced in the Cr.P.C. under heading, "Direction for grant of bail to persons apprehending arrest".

In our country in absence of any express law the High Court Division in exercise of its power under Section 498 of the Cr.P.C. grants anticipatory bail in fit circumstances. Since you are a lawyer your knowledge must not be confined to what is written in the columns of the newspapers. You have to be exposed to the development by careful reading through the important decisions of our Supreme Court. The jurisprudence of anticipatory bail developed over the decades is already replete with huge literature not admitting of even a brief discussion intended for a junior lawyer in the limited space of this column. It will best serve your purpose if I give you the references on anticipatory bail for reading at home and tell you about the basic principles laid down by the Appellate Division in a recent landmark decision given in the case of Abdul Wahab Shah Chowdhury reported in 4 BLC(AD)195.

The basic grounds of anticipatory bail as are provided in that decision are:
a) that the proceeding is being or has been launched against the petitioner is being or has been taken with an ulterior motive, political or otherwise, for harassing the accused and not for securing justice

b) that on account of some local public commotion or other circumstances it is not possible for the petitioner to appear before the lower court.

In the 'other circumstances' there may be serious bodily infirmities not permitting a long travel to court. Taking cue from this decision and many other cases of anticipatory bail already decided we usually take another ground that there is no prospect of bail before the lower court for extraneous circumstances. But in all cases the basic principles of bail laid down in Section 497 shall be the guiding principle. That means, in view of the facts and materials on records, court should have reason to believe that the petitioner is not guilty of the offence.

For your immediate reading I suggest the following cases: Crown vs. Khushi Muhammad, 5 DLR(FC)143;. Sadeq Ali Vs. State 18 DLR (SC) 393; Mohd. Ayub Vs. Yakub, 19 DLR(SC) 38;. Zahoor Ahmed Vs. State,PLD 1974 Lahore 256; Md. Atiqullah Khan Masud Vs. The State & another 15 BLD (AD) 14; State Vs. MA Malik 47 DLR (AD) 33.

As to the jurisdiction of the Sessions Judge there is no clear view of our Supreme Court ousting his power to grant anticipatory bail. Therefore, Sessions Judge enjoys concurrent jurisdiction with the High Court Division in matters of granting anticipatory bail.

Your advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh. His professional interests include civil law, criminal law and constitutional law.

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