The New Nation - Internet Edition

High Court Division

[Criminal]

Present:

Mr. Justice Khademul Islam Chowdhury

And

Mr. Justice Afzal Hossain Ahmed

Criminal Appeal No. 5122 of 2006

Abul Kalam t.. Accused Appellant (In custody)

Versus

The Statet. Respondent

Mr. Md. Shamsul Huda-

for the Appellant.

Mr. Khondoker Diliruzzaman A.A.G with Mrs. Salma Rahman. A.A.G.

. .. for the State.

Judgment on: 5.8.2007

Code of Criminal Procedure, 1898 Section -498 read with Section 339( c)

Inordinate delay in holding trial

In view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence if the trial is not concluded in the specified time and since the co-accused Shamsul Alam has been enlarged on bail by the High Court Division we are inclined to enlarge the appellant on bail [Para-5]

Judgment

Mr. Khademul Islam Chowdhury, J: This Criminal Appeal at the instance of accused Abur Kalam is directed against an order dated 20.11.2006 passed by Metropolitan Special Tribunal No.7 Dhaka, in Metropolitan Special Tribunal Case No. 473 of 2003 (arising out of Gulshan Police Station Case No. 26 dated 16.8.2002) rejecting the prayer for bail of the accused appellant.

2. Case of the prosecution is that one S.L Md. Abul Hakim along with his company under the leadership of Md. Abdul Nur, Police Inspector lodged FIR-with the Gulshan Police Station, Dhaka on 16.8.2002 alleging, inter alia, that they arrested the FIR named accused persons in accordance with D.B. Office Diary No. 651 dated 14.8.2002 under section 54 of the Code of Criminal Procedure and thereafter they had taken him on remand and on interrogation they disclosed that they were the active members of gang of Motor Cycle Thieves. They used to meet at the house of the accused Abul Kalam of Mohakhali and steal motor cycle from the city area and snatched the same showing arms and sold those in different districts.

After interrogation they recovered one 32 bore country-made revolver and two round bullets alleged to have been brought out by accused Shamsul Alam on his own from the house of the accused appellant and pursuant to alleged confession made by co-accused Suruj Miah and the appellant, thereby committed the offence punishable under section 19(Ka) of the. Arms Act. Police seized the revolver by preparing seizure list in presence of the witness. One receipt of the F.I.R. Gulshan police station case No. 26 dated 16.8.2002 was started, police investigated the case and submitted charge sheet against 3 (three) accused persons. Prayer for bail moved before 'the Metropolitan Special Tribunal No.7 before whom the case is pending for trial is rejected as aforesaid, hence this appeal.

3. Mr. Md. Shamshul Huda, the learned Advocate appearing for the accused appellant taking us through the FIR and seizure list and order sheet including the last order sheet dated 4.6.2007 and the evidence on records in the case already recorded submits that there has been undue prolongation of the case for failure to produce prosecution witnesses and it will be evident from the last order that the case has been fixed the next date on 1.8.2007 for trial. He further submits that there is no prospect of conclusion of trial within short period.

Mr. Huda, the learned Advocate has placed the decision of the Appellant Division on the case of Captain (Rtd) Nurul Huda -Vs State, wherein it is held if the trial has not been concluded within the specified time of 360 days from the date on which the case was received for trial the accused of nonbailable offence may be released on bail to the satisfaction of the Court unless the Court otherwise directs 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 the mandatory effect to he 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 tampering with witnesses or hindering the prosecution of the trial.

The learned Advocate then submits that 2 accused persons namely, Md. Shamsul Alam and Suruj Miah allegation against whom is same against refusal of prayer for bail accused Shamsul Alam preferred Criminal Appeal No. 2931 of 2006 and he was enlarged on bail by the High Court Division at the time of admission of appeal. In the facts and circumstances of the case, the accused .appellant standing in the better footing than that of the accused released on bail he may be enlarged on bail. .

4. The learned .A.A.G. opposes the prayer for bail. He submits that the arms was recovered from the joint possession and the accused are named in the FIR and considering the nature of allegation bail should not be granted.

5. Considering the facts and circumstances of the case and the submissions made by the learned Advocate for the accused appellant and the learned Assistant Attorney-General for the state, in view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence is the trial is not concluded in the specified time and since the co-accused Shamsul Alam has been enlarged on bail by the High Court Division we are inclined to enlarge the appellant on bail.

6. Accordingly the appeal is allowed.

Let the accused-appellant Abul Kalam, son of late Nayan Matbar be enlarged on bail to the satisfaction of the Deputy Commissioner Dhaka. If the appellant misuses the privilege of bail tribunal can take him in to custody.

The impugned order appealed against is hereby set aside.