The New Nation - Internet Edition

High Court Division

Criminal

Khondker Musa Khaled-J.

And

A.F.M.Abdur Rahman-J.

CRIMINAL APPEAL No. 3038 OF 2006

(From the Order dated 29.6.2006 passed by the Metropolitan Special Tribunal No. 7 Dhaka in Metro Special Tribunal Case No. 1462 of 2004.)

Md. Farid Hossain ……..appellant

Vs.

The State ………respondent

For the appellant : Mr. Md. Abdur Razzaque, Advocate.

For the respondent : Mr. Md. Mamunor Rashid, A.A.G.

Judgment: September 26, 2007.

Code of Criminal Procedure, 1898-

Section 339C(4)- Bail of accused in case of non-bailable offence when trial can not be concluded within the statutory period-

Arms Act, 1878-

Section 19A-bail of accused when trial is inordinately delayed-

Law does not approve of long detention of an accused in jail custody without trial. Section 339C(4) of the Code of Criminal Procedure provides for granting bail to the accused in case of non-bailable offence when trial is inordinately delayed and cannot be concluded within the prescribed time limit. Having regard to this provision of law the learned judges of the High Court Division granted bail to the accused petitioner.

It may be mentioned here that there is specified period for concluding trial of a criminal case under section 339C(4) of the Code of Criminal Procedure. If the trial of the case is not completed within 360 days, if the accused is in custody, he should be released on bail even in the case of non bailable offence unless reasons are found by the Court to take the decision otherwise. In this case, we do not find any reason to take more than three years for disposal of the case keeping the accused appellant in custody …………(Para 5)

In the instant case, the delay appears to be more than the said period (1138 days) and the accused-appellant definitely deserves consideration for getting bail due to such inordinate delay in disposal of the case ………(Para 7)

JUDGMENT

KHONDKER MUSA KHALED-J: This Criminal Appeal under section 30 of the Special Powers Act, 1974, is directed against the order dated 29.6.2006 passed by the learned Judge of the Metropolitan Special Tribunal No.7, Dhaka in Metropolitan Special Tribunal Case No. 1462 of 2004 arising out of Mirpur Police Station Case No. 61 dated 18.9.2004 under section 19A of the Arms Act rejecting the prayer for bail of the accused appellant.

2. Briefly, the facts the prosecution case are that S.I. Kamruzzaman of Dhaka Metropolitan Police Station Mirpur along with other police personnel arrested the accused appellant Md. Farid Hossain and recovered one foreign made revolver on the basis of secret information. Since the accused could not show any licence for keeping the fire arms, he was taken in to the custody and F.I.R., was lodged under section 19A of the Arms Act on 18.9.2004. Another Sub-Inspector of police Ramizuddin investigated the case and submitted charge sheet on 2.1.2004 against apprehended accused under the same provision of the Arms Act.

Thereafter, the case was transferred to the Court of Metropolitan Special Tribunal no, 7 and the learned Judge of the Special Tribunal took cognizance in the case on 16.4.2004 and subsequently on 11.10.2005 charge was framed against the accused-appellant fixing on 5.6.2005 for examination of P.Ws. Since then, several dates were adjourned for examining the prosecution witnesses.

But the Tribunal has not yet been able to record testimony of any witness due to failure of the prosecution to produce them in the Court. On this back ground, the accused-appellant submitted an application for bail but the learned Judge of the Tribunal rejected his prayer by the impugned order dated 29.6.2006, which gave rise to this criminal appeal.

3. Mr. Md. Abdur Razzaque, the learned Advocate appearing on behalf of the accused-appellant submits that he has no other ground to seek bail except the ground of long pre-trial detention. It is pointed out that the accused persons have right to get justice within a reasonable time, otherwise the Court should not hesitate to release him from custody on bail. With reference to the supplementary affidavit, he submits that several adjournments are being granted mechanically by the Tribunal since inception of the case and the learned Tribunal Judge has not yet been able to record evidence of a single prosecution witness. At last the case has been fixed for examination of witness on 3.2.2008, that is, long after 5 months.

Since the accused appellant, has been suffering in pre-trial custody for about three years from the date of his arrest, and there is no prospect of early disposal of the case, the accused is legally entitled to get bail. In support of his contention in the matter the granting bail on the ground of long detention, the learned Advocate-has referred to a case decision reported in 14 BLD 604.

4. Mr. Md. Mamunor Rashid, the learned Assistant Attorney General appearing on behalf of the State, has opposed the prayer for granting bail with the contention that a fire arm was directly recovered from his possession and control and as such, the accused should not be released on bail.

5. On perusal of the record, it appears that the accused-appellant has been languishing in jail hajot for more than 3 years from the date of his arrest. But the prosecution has been dragging trial of the case as no prosecution witness could be produced before the Tribunal consecutively on several dates. The learned Advocate for the appellant has submitted the certified copy of the entire order sheet of the Special Tribunal case to show that no prosecution witness has yet been examined, though charge was framed by the Tribunal as back as on 11.5.2005. We have seen from the record that the case was fixed for trial on 5.6.2005 and since then so many dates for examining the prosecution witnesses were adjourned at the instance of prosecution. Because,. no prosecution witness could be brought before the Court for examination.

It is also evident from the last order dated 2.9.2007 that no prosecution witness has been exams and that the next date of examining the prosecution witnesses has been fixed on 3.2.2008. We are surprised to see that the learned Judge of the Tribunal adjourned the case for about 5 months at a time in such a long pending case keeping the accused appellant in custody.

The learned· Judge should inform the higher authority of the Police Department about their failure to bring the prosecution witness before the Court for holding trial within the prescribed period of time. No process of the Court got any importance for execution by the Police so long.

This is very unfortunate in this case of serious nature. It may be mentioned here that there is specified period for concluding trial of a criminal case under section 339C (4) of the Code of Criminal Procedure.

If the trial of the case is not completed within 360 days, if the accused is in custody, he should be released on bail even in the case of non boilable offence unless reasons are found by the Court to take the decision otherwise. In this case, we do not find any reason to take more than three years for disposal of the case keeping the accused appellant in custody.

6. In the case of Manjurul Hoque @ Monju Vs. The State, reported in 14 BLD 604, their lordships have given the following observation:

"In view of the amended provision of Section 339C by the Act No. 42 of 1992, when the trial of a case cannot be concluded within 360 days, the accused, if in custody; should be released on bail even in a case on non-bailable offence unless for special reasons the Court directs otherwise. Inordinate and unreasonable delay in holding the trial provides a good ground for considering an application for bail even in a case involving grade offences."

7. In the aforesaid case, the delay in holding trial was 782 days and. the Court decided that it was an inordinate delay for the purpose of granting bail. In the instant case, the delay appears to be more than the said period (1138 days) and the accused appellant definitely deserves consideration for getting bail due to such inordinate delay in disposal of the case.

8. In view of the aforesaid considerations, we are inclined to enlarge the accused appellant on bail till the date of hearing argument of the case.

9. In the result, the appeal is allowed. The impugned order dated 29.6.2006 rejecting bail of the accused-appellant is hereby set aside. The accused appellant Md. Farid Hossain, son of Md. Abdus Samad, shall find bail till the date of hearing argument of this case on furnishing adequate bail bond to the satisfaction of the learned Judge of the Special Tribunal no. 7, Dhaka. The Tribunal Judge shall, however, be at liberty to cancel the bail if the accused appellant misuses the privilege of bail at any stage of the trial.

10. Send a copy of the judgment to the Court below at once.

APPELLATE DIVISION

(Criminal)

Md. Ruhul Amin-J.

Syed J. R. Mudassir Husain-J.

Abu Sayeed Ahamed-J.

CRIMINAL PETITION FOR LEAVE TO

APPEAL NO.IS1 of 2001.

(From the judgment and order dated 4th July,2001 passed by the High Court Division in Criminal Miscellaneous Case No. 1493 of 1995)

Golam Sarwar Hiru ………..Petitioner.

Vs.

The State and another ………Respondents.

For the Petitioner : Mr. Syed Ziaul Karim, Advocate, instructed by Mr. Md. Nawab All, Advocate-on- Record.

Respondents : Not represented.

Judgment: 10 July, 2002

Code of Criminal Procedure, 1898-

Section 561A- Quashment of the proceedings at the stage when trial already begun and prosecution witnesses are examined, is not permissible-

When after the framing of the charge u/s 420 of the Penal Code the prosecution witness were examined and cross-examined, the High Court Division refused to quash the proceedings at this stage which the apex court found perfectly justified.

We have heard the learned Advocate appearing for the petitioner and perused the judgment of the High Court Division.

It appears that the High Court Division found that the trial of the said case has already been started and witnesses were examined on behalf of the prosecution.' Having considered this aspect, the High Court Division refused to quash the proceeding……. (Para 4)

JUDGMENT

SYED J. R. MUDASSIR HUSAIN-J:

This petition for leave to appeal is directed against the judgment and order dated 4th July, 2001 passed by a Single Bench of the High Court Division m Criminal Miscellaneous Case No. 1493 of 1995 discharging the Rule arising out of the proceedings of the Criminal Case No.561 of 1993 under Section 420 of the Penal Code pending in the Court of Magistrate First Class, Court No.1, Bagerhat.

2. The respondent No.1 as complainant on 6-11-1993 filed a petition of complaint in the Court of Thana Magistrate, Bagerhat Sadar, Bagerhat against the accused petitioner alleging, inter alia, that the complainant has a business transaction with the other business man; that on 8-91992 the accused petitioner by executing relevant papers received Tk. 93,380/ - as advance for supplying fish to the complainant; that the accused did not supply the fish in time, on query the complainant came to know that the trawler for catching fish of the accused was disordered, thereafter the complainant again paid Tk. 30,000/- to the accused; thereafter the accused without supplying fish denied the entire transaction; that on receipt of the petition of complaint the learned Magistrate examined the complainant and took cognizance of the offence tender Sections 406 and 420 of the Penal Code and issued warrant of arrest against the petitioner and subsequently the petitioner was granted bail.

It is further stated that the charge tender Section 420 of the Penal Code was framed against the petitioner and the case is pending for trial and in the meantime 4 (four) witnesses have been examined.

3. Challenging the aforesaid proceeding, the petitioner moved the High Court Division by filing an application tender Section 561A of the Code of Criminal Procedure and the Rule obtained in aforesaid Criminal Miscellaneous Case was discharged. Hence, this leave-petition.

4. We have heard the learned Advocate appertain for that petitioner and paused the judgment of the High Court Division.

It appears that the High Court Division found that the trial of the said cast' has already been started and witnesses were examined on behalf of the prosecution. Having considered this aspect, the High Court Division refused to quash the proceeding.

5. For this reason, we do not find any legal infirmity for our interference with the impugned judgment of the High Court Division. Accordingly this petition is dismissed.