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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 254
September 16, 2006

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Court Corridor

Anticipatory bail

Barrister Moksadul Islam

Anticipatory bail is also known as pre-arrest bail. But the question is can someone be enlarged on bail when he was already a freeman? Usually it is granted even though no warrant for arrest has been issued. However we have decision of the Honourable Court saying a person cannot be admitted to bail unless he is in custody or under some other form of restrain, reported in 5 DLR (FC) 143 [Crown vs. Khusi].

Usually an application for anticipatory bail is made after the filing of First Information Report (FIR) and before submission of the Charge Sheet. It is made under section 498 of the Code of Criminal Procedure, 1898 even though section 498 deals with regular bail. Considering socio-economic condition and political unrest of our society the Hon'ble Court may allow this extraordinary remedy of anticipatory bail, amounts other, on the ground that the facts and materials disclosed an ulterior motive, political or otherwise, for harassing the accused and not for securing justice, in a particular case. Usually the prayer portion of the application has two parts i.e. (1) Rule in the form of a show cause notice and (2) ad-interim bail. Normally the prayer is framed in the following manner: 'wherefore it is most humbly prayed that your Lordships would graciously be pleased to issue a Rule calling upon the Deputy Commissioner, Nilphamari to show cause as to why the Petitioner should not be enlarged on anticipatory bail in Saidpur P.S. Case No. 23 dated 12.6.1991 corresponding to G. R. No. 196/2002 under Section 399/402 of Penal Code now pending in the court of First Class Magistrate, Nilphamari and the Petitioner further prays for ad-interim bail till disposal of the Rule'.

A careful observation of the prayer will reveal that only the Rule contains the word anticipatory bail and issuance of the Rule opens the door for bail. Things will be clearer upon examining the order which is usually passed the Court. Usually the Rule is issued in the manner it is prayed and ad-interim order is passed saying 'not to arrest or humiliate the Petitioner for a certain period (or till disposal of the Rule) or till submission of the Charge Sheet (CS) whichever is earlier'. That means after submission of the Charge Sheet you cannot make an application for anticipatory bail.

One of the main grounds of these kinds of applications is political ground. The magistrate being part of the executive may not grant bail at the instigation of the party in power. Under these kinds of situations usually it is ordered to surrender before the judicial officer (e.g. sessions Judge) instead of any Magistrate. However, on many occasions even thought there was no such prayer for any direction from the Court yet the court orders surrender of the Petitioner before a particular court. Sometimes a direction to surrender frustrates the entire purpose of making an application for anticipatory bail. These kinds of directions sometimes may be interpreted as an order of arrest upon surrender. You came for bail now you must surrender and get arrested. As the tribunal before which you will have to surrender lacks power to grant bail. If you do not surrender you risk being held on Contempt of Court. Although for ends of justice the court has immense inherent power. However the question is under the existing provisions of law can the Court pass an order of direction to surrender before a court which lacks power to grant bail? Sometimes although the FIR contains a name yet no allegation is revealed therein the said FIR against that person. Under these kinds of situations usually the order is passed asking the authority not to arrest unless the Petitioner is wanted in a specific case.

The question is can the police arrest someone who is not wanted in any specific case (except under section 54)? Obviously the answer is no. Then why do we need an order from the Supreme Court just confirming the law. Similarly should the police be stopped from investigation an alleged crime? Once again the answer should be negative. If we do not allow the police to investigate properly how would he submit his report (i.e. Charge Sheet or Final Report)? Simply a Catch-22 situation, is not it?

This is a fortnightly column and the columnist is an advocate of the Supreme Court, Bangladesh, who can be reached at mail@legalsteps.net


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