The New Nation - Internet Edition

High Court Division

(Criminal Revisional Jurisdiction)

Emergency Power Rules, 2007

Rules 14, 15ga, 16(2) & 199ha, Nea(5)

Code of Criminal Procedure (V of 1898)

Sections 167, 497, 498 and 561A

The High Court Division’s considered view is that rule 19gha cannot operate as a bar for an indefinite period in case of persons like the present accused petitioners. This court can entertain their bail petitions, if not under section 497 or 498 of the Code, but under section 561A of the Code. Moreover, the principle laid down in section 167 of the Code also comes into play. It may be mentioned that section 167 provides for consideration of bail prayers if investigation cannot be concluded within the period specified therein. Since Rule 12 of the Rules, 2007 make the Code applicable, by applying the principle laid down in section 167 read with section 561A of the Code, this Court, for securing the ends of justice, can consider the bail prayer of the accused petitioners.

When there is no remedy in any law, this Court in an appropriate case can invoke its inherent jurisdiction as provided under section 561A of the Code, which is an extraordinary power and inherent to the High Court Division to prevent the abuse of the process or to otherwise secure the ends of justice. In an appropriate case, the Court should not put its hands off in exercising the said power if such exercise serves the cause of justice. In all the six cases it appears that the investigation has not been completed within the period specified in the Rules, 2007. Assuming that the provisions of these Rules prohibit bail application, the Rules also provide for speedy investigation and trial thereby indirectly gives an implicit right to seek bail after the expiry of the specified period, as he cannot be put behind the bar in the name of investigation for unlimited period, and he should not be condemned before his conviction. So, having no remedy available to them, the High Court Division is inclined to enlarge on bail all the accused petitioners of Criminal Miscellaneous Case Nos. 8135, 14179, 13166, 7677, 9103 and 15148 of the year 2007 by applying the underlying principle of section 561A read with section 167 of the Code of Criminal Procedure.

The case of Criminal Miscellaneous Case No. 12489 of 2007 in which the accused petitioner Md Fazlur Rahman Patol is the petitioner. Here it is found that there were two previous investigations over the selfsame matter and police submitted final report on both occasions. It appears that earlier two other complaints were made against the petitioners. In the present case the allegations are the same i.e. the accused petitioner over telephone from Dhaka gave instructions to other accuseds to do some mischief. But none of the alleged offences committed according to petitioner’s order fall within the ambit of rule 14 or 15 read with rule 19(Neo)(5). The reference to rule 16(2) of the Rules, 2007 in the charge sheet with a further reference to GD Entry and the arrest of the accused petitioner in that connection, does not in any way affect the bail matter. The said Rule 16(2) simply empowers the members of the law enforcing agency to arrest a person suspected to be involved in a cognisable offence. Considering all these aspects, the High Court Division is inclined to enlarge the accused petitioner on bail.

tt (43 to 47)

Khondker Mahbub Hossain, Advocate-For the

Petitioner of Criminal Miscellaneous No. 8135 of 2007)

Abdul Baset Majumder, Advocate-For the

Petitioner of Criminal Miscellaneous No. 14179 of 2007.

Md Moazzem Hossain, Advocate-For the

Petitioner of Criminal Miscellaneous No. 13166 of 2007.

Md Nizamul Huq, Advocate-For the

Petitioner of Criminal Miscellaneous No. 7677 of 2007.

Delwar Hossain Samadder, Advocate-For the

Petitioner of Criminal Miscellaneous No. 9103 of 07.

Md Shamsul Huda, Advocate-For the

Petitioner of Criminal Miscellaneous No. 15148 of 2007.

AM Mahbubuddin, Advocate-For the

Petitioner of Criminal Miscellaneous No. 12489 of 2007.

M Salahuddin Ahmed, Additional Attorney General, with Syed Haider Ali, Deputy Attorney General and AFM Md Zubair Hossain, Assistant Attorney-General-For the State.

MA Malek, Advocate-Amicus Curiae.

Judgment

Sharifuddin Chaklader J: All these Rules except the one in Criminal Miscellaneous Case No. 12489 of 2007 involve an important and common question of law, namely authority of this Court to grant bail in cases where First Information Report (shortly FIR) have been lodged with allegations of some form of corruption, but investigation has not been completed within the maximum period of 60 days as provided in rule15 Ga of the Emergency Powers Rules, 2007 (shortly the Rules 2007).

2. The question arises because of the prohibition imposed by rule 19 Gha of the Rules 2007 to the effect that a person accused (Awfhy³ e¨w³) of an offence under the laws mentioned in rules 14 and 15 of the Rules, 2007 cannot apply for bail to †Kvb Av`vjZ ev UªvBey¨bvj t during AbymÜvb, Z`šÍ I wePvi | Again, although rule 15 Ga has specified a maximum time limit of 60 days for conclusion of investigation, but rule 15 Ga or other provisions of the Rules, 2007 are silent as to what happens to a person taken in custody after lodgment of the FIR, but investigation is not concluded within that time limit.

3. On the other hand, the Rule issued in Criminal Miscellaneous Case No. 12489 of 2007 is about the bail petition in a case where FIR has been lodged and charge sheet has been submitted with allegations, not for corruption matter, but for offences under sections 143, 323,324,325,307,379,114 and 109 of the Penal Code, with a reference to rule 16(2) of the Rules, 2007. This reference to the said rule 16(2) raised a question of authority of this Court to grant bail, since rule 19 Gha imposes prohibition on a person to apply for bail who is accused of an offence under the Penal Code.

4. In deciding the point of law as aforementioned, the facts of the cases need to be briefly stated, which are as follows:

The Rule issued in Criminal Miscellaneous Case No. 8135 of 2007, is about the bail of petitioner AKM Reazul Islam in GR Case No. 164 of 2006 pending in the court of Magistrate 1st Class, Faridpur. In that case, the first information report was lodged on 12-4-2007 under sections 161/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1974 (Act II of 1974). It has been alleged accused petitioner being a public servant with the assistance of other co-accused, demanded and took a bribe of Taka 2,75,500. In this case accused petitioner was arrested and forwarded to the Court, on 13-4-2007. But no police report was submitted till 23-9-2007 as stated in the supplementary affidavit.

5. The Rule issued in Criminal Miscellaneous Case No. 14179 of 2007 is about the bail of petitioner Haji Md Monir Hossain in GR Case No. 115 of 2007 pending in the court of Chief Metropolitan Magistrate, Dhaka. In that case the first information report was lodged on 1-7-2007. The allegation is under sections 420/409/406 of the Penal Code for misappropriating certain relief goods namely 106 pieces of corrugated tin (†XDwUb) by the accused petitioner, along with other co-accuseds one of them being an exMP. In this case Police Report was not submitted till 28.10.2007 nor the case was sanctioned by the Government under the Rules, 2007 as stated in the supplementary Affidavit.

6. The Rule issued in Criminal Miscellaneous Case No. 13166 of 2007, is about the bail of petitioner Md Joinal Abedin Molla in GR Case No. 20 of 2007 pending in the court of Magistrate 1st Class, Faridpur. In that case the first information report was lodged on 19-22007. The allegations is under sections 420/406 of the Penal Code wherein it has been alleged that accused petitioner, being a chairman of a Union Parishad, misappropriated some relief goods, namely 55 pieces of corrugated tin (†XDwUb). In this case also police report was not submitted till 29-8-2007 nor any sanction was accorded by the government under the said Rules 2007.

7. The Rule issued in Criminal Miscellaneous Case No. 7677 of 2007, is about the bail of petitioner Md Shahadat Hossain. in GR Case No. 40 of 2007 pending before Cognisance Court No.3, Habiganj. In that case first information report was lodged on 18-2-2007. The allegation is under section 409 of the Penal Code read with section 5(2) of Act II of 1947, that the accused petitioner as public servant being employee of Krishi Bank took bribe and misappropriated Taka 9,50,000 of the Bank. In this case police report was not submitted till 20-6-2007, as stated in a supplementary affidavit.

8. The Rule issued in Criminal Miscellaneous Case No. 9103 of 2007 is about the bail of petitioner Md Abul Bashar in Kotwali Police Station Case No. 29 dated 17-3-2007 pending in the court of Magistrate 1st Class, Faridpur. In that case, the first information report was lodged on 17.3.2007. The allegation is under sections 406/409/109 of the Penal Code read with section 5(2) of Act II of 1947, that the accused petitioner, in collusion with the concerned Government officers, unlawfully purchased and hoarded some books in his godown, although the books were meant for distribution to students free of any price under a government programme. In this case also police report was not submitted. '

9. The Rule issued in Criminal Miscellaneous Case No. 15148 of 2007 is about the bail of petitioner Jahangir Hossain in GR Case No. 445 of 2007 pending in the court of Chief Metropolitan Magistrate, Dhaka. In that case the first information report was lodged on 23-5-2007. The allegation is under sections 161/165 Ka of the Penal Code read with section 5(2) of Act II of 1947 for taking bribe of Taka 2,500 by the accused petitioner, an employee of DESA, in collusion with co-accused. In this case police did not submit report till 24-7-2007.

10. In all these six cases, the Opposite Party (State) contested the Rule and also filed counter-affidavits except in Criminal Miscellaneous Case Nos. 9103 and 15148 of 2007. On a reading of the counter-affidavits, we find that State does not say a single word charge sheet has been submitted or not.

11. The Rule issued in Criminal Miscellaneous Case No. 12489 of 2007, is about the bail of petitioner Md Fazlur Rahman Patal in GR Case No. 81 of 2007 pending in the court of Magistrate 1st Class, Amoli Adalat No.1 Lalpur, Natore. In that case the first information report was lodged on 29-4-2007 about an occurrence that allegedly happened on 1-102005. In this case charge sheet has been submitted on 9-7-2007 under sections 143/ 323/ 324/ 325/ 307/ 379 114./109 of the Penal Code. In this charge sheet, there is a remark that the accused petitioner is in custody in connection with GD Entry No. 2565 dated 295-07 under rule 16(2) of the Rules, 2007.

12. In this case opposite party State has not filed any counter-affidavit, but contested the Rule and Sayed Haider Ali, the learned Deputy Attorney-General, opposed the bail prayer: We find from paragraph 6 of the application that, over the self same occurrence, earlier, two different private persons made two petitions of complaint which were treated as first information report and in both cases after investigation, police submitted final report. These averments have not been even denied by the opposite party.

13. Learned Advocates for the petitioners focus their submission mainly on two points. Firstly, according to them, the High Court Division having not been created under any ordinary statute or law, but under the Constitution, the provisions of the Rules, 2007 in the matter of granting bail cannot stand as a bar and this Court can exercise its jurisdiction under sections 497 and 498 of the Penal Code. They also put much emphasis on the decision of the case of Moyezuddin vs State, reported in 59 DLR 287, where a Division Bench of this Court held that this Court can entertain applications filed under sections 497/498 of 14. Secondly, the learned Advocates for the petitioners, submit that since all the cases involve allegations under the Penal Code, rule 19Neo (1) of the Rules, 2007 require sanction, and since no sanction have been accorded in these cases, bail applications can be entertained as per rule 19 Neo(6) and bail may be granted by this court.

15. Mr M Salahuddin Ahmed, the learned Additional Attorney-General, on the other hand, submits that the decision of the aforesaid case is under challenge before the Appellate Division as leave to appeal has been granted already on the judgmentpassed by the other Bench. Mr Salahuddin Ahmed next submits that rule 19 Gha has clearly ousted the jurisdiction of all Courts and Tribunals including the High Court Division to grant bail, as it prohibits an accused person even to file an application for bail, and that limited scope for bail is given under Rule 19 Neo (5) of the Rules, 2007 for the offences under the laws mentioned in Rule 14 of the Rules, 2007, but there is no such scope in the cases which involve offences under laws specifies in rule 15. He further submits that the Prevention of Corruption Act, 1947 and all corruption matters by public servants or their aides fall within the ambit of the `yb©xwZ `gb Kwgkb AvBb as mentioned in rule 15, and therefore, in none of the six cases under consideration bail not be granted by this court and sanction is not necessary at all, only because in the first information report there are reference to the Penal Code sections.

16. Since the matters involve an important question as regards granting of bail by this Court tmder the Rules, 2007, we invited Mr MA Malek, learned Senior’ Advocate, as Amicus Curiae for his views. The learned Amicus Curiae submits that the Emergency Rules is against the spirit of the fundamental right guaranteed under Article 31 of the Constitution and that if any ·law is contrary to the dictum of the Constitution, that law should be deleted or at least ignored in the dispensation of justice. The learned Amicus Curiae next submitted that the provisions of the Emergency Rules so far they relate to the fundamental rights guaranteed under Article 31 of the Constitution, are also against general human rights, and therefore should not stand as a bar to granting bail.

17. The learned Amicus Curiae pointed out that there are a number of anomalies in the said Rules of 2007, as Rule 10 has declared an offence under the said Rules as non bailable, which means that court may in appropriate cases grant bail, yet rule 19 Gha provides that even an application for bail cannot be filed· by an accused person against whom an inquiry (AbymÜvb), investigation or trial is pending for any offence under the said Rules, 2007 or under any law mentioned in rule 14 or 15. Mr MA Malek next submitted that however, the framers of the law could later on understand that such general prohibition was going too far, so they introduced rule 19 Neo (19T) allowing limited scope of bail in case of offence under the laws mentioned in rule 14.

18. The learned Amicus Curiae further submitted that from the language of all these 3 rules, it appears that one is inconsistent with another, as such these 3 rules cannot be kept together in the same Rules, 2007. Again Rule 11 provides for appeal to appropriate court, but without mentioning the name of the Appellate Court, and the entire Rules 2007 does not speak of formation of Court for trial of the offences under the said Rules although Rules 3 to 9 thereof create some new offences.

19. Mr Malek continued that all laws are prospective in nature, unless there is specific provision for applying it retrospectively. So, according to him, offences which were allegedly committed before commencement of the Rules, 2007, must be handled carefully, and the provision of Rules, 2007, cannot stand as barrier to granting bail. Lastly, he submitted that, to avoid confusion arising from the anomalous provisions of the Rules, there should be at least an indication in the Investigation Report and other prosecuting materials as to whether or not in a particular case sanction has been accorded under the said Rules, 2007.

20. To decide the question invoked in the Rules issued by this Court in the six cases, let us have a close look to the scheme and provisions of the Rules, 2007. From a c1u’c reading of the entire Rules, 2007, it appears to us that 3 (three) categories of offences have been brought within the purview of the Rules 2007, as follows:

(a) The first group of offences have been identified in rules 3 to 9, with provision for penalty. These offences are mostly related to law and order and incidental matters.

(b) The second group of offences have been identified in Rule 14 by way of reference to six existing laws including the Penal Code and also to cÖPwjZ we‡kl AvBbmg~n The other feature of this Rule is that it empowers all disciplined forces (k„sLjv i¶vKvix evwnbxmg~n) to suppress serious offences against the public safety, public peace and order and economy of the country.

(c) The third group of offences have been identified in rule 15 with reference to three laws, namely, (`yb©xwZ `gb Kwgkb AvBb, 2004, gvwbjÛvwis cÖwZ‡iva AvBb, and the Income Tax Ordinance, 1984. The other feature of rule 15 is similar to that of Rule 14.

21. Rules 10, 11, 12, 15 ga and 19ka relate to the principal aspects of procedural matters of investigation and trial of the said offences. Rule 10 (1) identifies the Courts and Tribunals which can try the offences under the Rules, 2007 (GB wewagvjvi Aaxb Acivamg~n) and mentions ‡¶ÎgZ `ª“Z wePvi Av`vjZ, `ª“Z wePvi UªvBey¨bvj, †g‡UªvcwjUb g¨vwR‡÷ªU, ev cÖ_g †kªYxi g¨vwR‡÷ªU . The maximum penalty under Rules 3-9 of the Rules, 2007 appear to be five years imprisonment. So it is not clear why `ª“Z wePvi UªvBey¨bvj which is basically a Court of Sessions is mentioned as the trial Court of the offences under GB wewagvjv|

22. Rule 11 identifies the appellate forum as GLwZqvi m¤úbœ Dchy³ Av`vjZ

23. Rule 12 provides for application of the Criminal Procedure Code in relation to investigation and trial in the following words:

12. †dŠR`vix Kvh©wewai cÖ‡qvM, BZ¨vw`| (1) GB wewagvjvi wfbœZi wKQy bv _vwK‡j, GB wewagvjvi Aaxb, †Kvb Aciv‡ai Awf‡hvM `v‡qi ev cÖv_wgK Z_¨ mieivn, Z`šÍ, wePvi c~e©eZ©x Kvh©µg, wePvi I Avcxj wb®úwËi †¶‡Î †dŠR`vix Kvh©wewa Gi weavbvejx cÖ‡hvR¨ nB‡e|

(2) Dc-wewa (1) Gi weavb m‡Z¡I, wewa 14 I15 †Z ewY©Z Aciva ev DwjwLZ AvBbmg~‡ni Aaxb Acivamg~‡ni Z`šÍ I wePv‡ii wel‡q we‡kl weavb _vwK‡j D³ we‡kl weavb Abyqvqx Z`šÍ I wePvi wb®úbœ Kwi‡Z nB‡e|

24. The plain reading of Rule 12 gives an impression that the provisions of CrPC as a whole including sections 497 and 498 override the Rules, 2007 as sub-rule (2) of rule 12 is silent about bail matters. But this impression appears to be negated by the subsequent provision namely, rule 19 Gha inserted later on. This rule reads as follows:

19N Rvwgb msµvšÍ weavb| Ri“ix Ae¯’v †NvlYvi Kvh©KvwiZv Kv‡j †dŠR`vix Kvh©wewai aviv 497 I 498 ev Ab¨ †Kvb AvB‡b hvnv wKQyB _vKzK bv †Kb, GB wewagvjv ev wewa 14 I 15 G DwjwLZ †Kvb AvB‡bi Aaxb †Kvb Aciva AbymÜvb, Z`šÍ I wePvi PjvKvjxb †Kvb Awfhy³ e¨w³ †Kvb Av`vjZ ev UªvBeyb¨vj Rvwg‡bi Av‡e`b Kwi‡Z cvwi‡e bv

25. Obviously, rule 199gha prohibits a person to apply for bail if he is accused of an offence under the laws mentioned in rules 14 and 15, which are quoted below:

14| KwZcq Aciva `g‡b we‡kl weavb| ivóª ev Rbmvavi‡Yi wbivcËv ev ¯^v_© i¶v‡_© ev Rb-k„sLjv I kvwšÍ eRvq ivwLevi cÖ‡qvR‡b A‰ea A¯¿, we‡ùviK `ªe¨, aesmvZ¥K Kvh© (Sabotage) gRy``vix (Hoarding), Jla I Lv`¨`ª‡e¨ †fRvj wgkªY, gy`ªv I miKvwi ÷¨v¤ú RvjKviY, Kv‡jvevRvix (Black marketing), †PvivPvjvb (Smuggling) gv`K`ªe¨mn ivóª ev RbM‡Yi wbivcËv I A_©‰bwZK Rxeb wecbœKvix Ab¨vb¨ wbivcËv I A_©‰bwZK Rxeb wecbœKvix Ab¨vb¨ ¸i“Zi Acivamg~n `gb wel‡q

1[Penal Code (Act XLV of 1860), Arms Act, 1878 (Act XI of 1878), Explosives Substances Act, 1908 (Act VI of 1908), Foreign Exchange Regulation Act, 1947 (Act VII of 1947)], Special Powers Act, 1974 (Act XIV of 1974), gv`K`ªe¨ wbqš¿Yv AvBb 1990 (1990 m‡bi 20bs AvBb-k„sLjv i¶vKvix evwnbxmg~n mwµq f~wgKv MÖnY Kwi‡e|

(underlines added by us)

15| `ybx©wZi Aciva m¤úwK©Z weavb| Ri“ix Ae¯’v †NvlYvi Kvh©KiZv-Kv‡j ivóª I RbM‡Yi A_©‰bwZK Rxeb, ¯^v_© I wbivcËv wecbœKvix `ybx©wZ m¤úwK©Z Acivamg~n `gb wel‡q cÖPwjZ `ybx©wZ `gb Kwgkb AvBb, 2004 (2004 m‡bi 5bs AvBb) 2, gvwbjÛvwis cÖwZ‡iva AvBb, 2002 (2002 m‡bi 7bs AvBb) Ges Income Tax Odinance, 1984 (Order No. XXXVI of 1984) Gi Aaxb AvqKi, `ybx©wZ I gvwbjÛvwis m¤úwK©Z Acivamg~n Kvh©Kifv‡e `gb Kwievi Rb¨ AvBb-k„sLjv i¶vKvix evwnbxmg~n D³ 3 ev Kwgkb Kg©KZ©v D³ Aciva D`NvUb ev AbymÜvb 4 Awf‡hvM ev gvgjv `v‡qi Ges Aciv‡ai mwnZ mswkó AcivaxMY‡K, cÖ‡qvR‡b †MÖdZvi Kwiqv, Z`šÍ I wePviv‡_© h_vh_ AvBbvbyM KZ…©c‡¶i wbKU mgc©Y Kwievi j‡¶¨ Dchy³ e¨e¯’v MÖnY Kwi‡e| (underlines added by us)

26. So it is clear that although rule 12 initially made sections 497 and 498 of the Code relating to bail matters applicable, subsequently rule 19Gha put total embargo on bail matters in relation to offences under laws mentioned in the above quoted rules 14 and 15.

27. However, sub-rules (5) and (6) of rule 19(Neo) relaxed the embargo for granting of bail in relation to the offences under the laws mentioned in rule 14, as follows:

(5) wewa 14†Z DwjwLZ AvB‡bi ZvwiL nB‡Z 20 gvP©, 2007 ZvwiL ch©šÍ, Ges

(L) Penal Code Gi sections 161, 162, 163, 385, 386, 387, 401, 406, 408, 409, 420, 423, 467, 468, 471, 477 Ges wewa 14†Z DwjwLZ Ab¨vb¨ AvB‡bi Aaxb 21 gvP©, 2007 nB‡Z GB wewa m¤ú©wKZ cÖÁvcb †M‡R‡U cÖKvwkZ nBevi c~‡e©, `v‡qiK…Z †h †Kvb gvgjv, GB wewa m¤úwK©Z cÖÁvcb †M‡R‡U cÖKvwkZ nBevi 10 (`k) w`‡bi g‡a¨ f~Zv‡c¶fv‡e Dc-wewa (1) Gi Aaxb Aby‡gv`b cÖ`vb Kiv hvB‡e| t

6| Dc-wewa (5) Gi Aaxb Aby‡gv`b cÖ`vb bv Kiv nB‡j D³ Dc-wewa‡Z wba©vwiZ mgqmxgv AwZµvšÍ nBevi ci, D³ wewa‡Z DwjwLZ †Kvb gvgjvi †¶‡Î wewa 19N Gi Rvwgb msµvšÍ wb‡lavÁvi weavbmn GB wewagvjvi Ab¨ †Kvb weavb cÖ‡hvR¨ nB‡e bv|Ó

28. In considering the common question of law involved in all the bail prayers we have quoted some of the provisions above. These provisions clearly indicate that the entire· scheme of the Rules, 2007, in relation to offences, is meant for serious offences which are likely to endanger public safety, law and order and the economic activities of the country. For that purpose, apart from the traditional law enforcing agencies, other disciplined forces were involved and empowered to undertake certain activities. This intention is clear from the underlined words of the rules 14 and 15.

29. The other principal feature of the Rules, 2007 is speedy action in relation to those offences. This intention is spelt out in rule 15ga and 19ka which specifies time limits for completion of investigation and triaL The rule 15ga is quoted below:

Ò15M| Z`‡šÍi mgqmxgv| -(1) GB wewagvjvi Aaxb `ybx©wZ, gvwbjÛvwis, AvqKi ev Ab¨ †Kvb Aciv‡ai mswkóZvi Kvi‡Y AvBb-k„sLjv i¶vKvix evwnbx KZ…©K wewa 15 Gi Aax‡b †MÖßvi ev AvUKK…Z e¨w³i wei“‡× AvbxZ Awf‡hv‡Mi Z`šÍKvh© miKvi KZ…©K GZ`y‡Ï‡k¨ wbhy³ Z`šÍKvix Kg©KZ©v Kwgkb Kg©KZ©v ev Z`šÍ mswkó Ab¨ †Kvb Kg©KZ©v KZ…©K m¤úbœ nB‡e Ges D³ Z`šÍKvix Kg©KZ©v Z`šÍKv‡h©i `vwqZ¡ cÖvwßi cieZx© 30 w`e‡mi g‡a¨ D³ Z`šÍKvh© m¤úbœ Kwi‡e|

(2) Z`šÍKvix Kg©KZ©v Dc-wewa (1) Gi Aaxb wba©vwiZ 30 w`‡bi w`e‡mi g‡a¨ Z`šÍKvh© m¤úbœ Kwi‡Z Amg_© nB‡j, h_vh_ KviY wjwce× Kwiqv Ges EaŸ©Zb KZ…©c‡¶i c~e©vbygwZ MÖnYµ‡g cieZx© 15 w`e‡mi g‡a¨ Z`šÍKvh© m¤úbœ Kwi‡e|

(3) Z`šÍKvix Kg©KZ©v Dc-wewa (2) Gi Aaxb ewa©Z mg‡qi g‡a¨ Z`šÍKvh© m¤úbœ Kwi‡Z Amg_© nB‡j, Dc-wewa (2) Gi DwjwLZ EaŸZb KZ…©c‡¶i Ae¨ewnZ cieZx© EaŸ©Zb KZ…©c‡¶i c~e©vbygwZµ‡g ZrcieZx© 15 w`e‡mi g‡a¨ Z`šÍKvh© m¤úbœ Kwi‡e|Ò

30. Rule 19ka is not relevant at this stage of the cases, as it prescribes time limit for trial.

31. As regards the scheme of the Rules 2007, the learned Additional Attorney-General Mr Salah Uddin Ahmed submitted that these Rules fundamentally create no new offences, except those mentioned in rules 3-9, and that the Rules created a mechanism for speedy investigation and trial of offences in the existing laws of the country e.g. those serious offences like under sections 385, 386, 409, etc. of the Penal Code and those relating to corruption. We basically agree with this submission.

32. However, to our query on the implication of the qualifying words occurring in rules 14 and IS, Mr Ahmed replied that these words have nothing to do with the bail matters, except that they are intended to justify the situation requiring the services of disciplined forces other than traditional forces like the police. .

33. But on a careful consideration of the scheme of the entire rules, we differ from the above view of Mr Salah Uddin Ahmed. Our considered view is that, at least in relation to offences under the laws mentioned in rule 14, sanction of the Government is necessary so as to bring an accused within ambit of the Rules, 2007. Rule 19Neo clearly speaks out this intention in the following words:

19T| wewagvjvi cª‡qvM msµvšÍ we‡kl weavb| -(1) AvcvZZt ejer Ab¨ †Kvb AvBb ev GB wewagvjvi wfbœZi hvnv wKQyB _vKzK bv †Kb, wewa 14†Z DwjwLZ †Kvb AvB‡bi Aaxb †Kvb Aciv‡ai Z`šÍ, wePvi, Avcxj, Rvwgb I Avbylw½K Ab¨vb¨ wel‡q GB wewagvjvi weavbvejx cÖ‡hvR¨ Kwi‡Z nB‡j D³ g‡g© Aciv‡ai mswkóZv Abyhvqx miKvi ev Ab¨ †Kvb KZ…©c‡¶i wbKU nB‡Z Aby‡gv`b MÖnY Kwi‡Z nB‡e|

(2) Dc-wewa (1) Gi Aaxb Aby‡gv`b cÖ`v‡bi ¶gZv, wjwLZfv‡e, mvaviY ev we‡kl Av‡`k Øviv, miKvi ev Ab¨ †Kvb KZ…©c¶ Dnvi Aat¯Íb †Kvb Kg©KZ©v‡K Ac©Y Kwi‡Z cvwi‡e|

(3) Dc-wewa (1) Gi Aaxb cÖ`Ë Aby‡gv`‡b Ri“ix ¶gZv wewagvjv, 2007 Gi weavbvejx cÖ‡hvR¨ nB‡e g‡g© D‡jL _vwK‡Z nB‡e|

(4) Dc-wewa (1) I (2) Gi Aaxb Aby‡gv`b cÖ`v‡bi †¶‡Î, Aby‡gv`b cÖ`vbKvix Kg©KZ©v‡K Aciv‡ai Rb¸i“Z¡ we‡ePbv Kwi‡Z nB‡e| ---

34. The entire Rules, 2007 however, is silent as to whether any sanction of the government is necessary in respect of offences relating to corruption and money laundering as mentioned in rule 15.

35. Again the Rules 2007 is silent about granting bail, except the embargo imposed by rule 199ha, prohibiting an accused to apply for bail under section 497 or 498 of the Code.

36. The practical question before us is, whether this court can grant bail in the instant 7 (seven) cases, in the light of the Rules, 2007, specifically those quoted above.

37. In all these cases except the one (Criminal Miscellaneous Case No. 12489 of 2007, only first information report’s have been lodged much before 60 days and investigation has not been concluded within the time limit specified by rule 15 Ga of the Rules. In all the six cases references are made to the corruption related provisions of Penal Code and in some cases also to section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947).

38. So the question is in which categories of offences do the allegations fall under i.e. whether under Rule 14 which encompass Penal Code or under Rule 15 which encompass basically Anti-corruption laws including Act II of 1947.

39. Assuming that since the allegation is basically about corruption they fall within the purview of rule 15 category i.e. anti-corruption laws, the question remains as to what is the ambit of the word ÒAwfhy³Ó as mentioned in rule 199ha and how long he will be deprived from the remedy of bail only because a first information report has been lodged, but investigation has not been concluded within the specified period and when there is no sanction in relation to at least the Penal Code sections as required by rule 19Neo (1).

40. The last but the most important question is, whether this court can entertain the bail application the filing of which is prohibited by rule 19Gha?

41. On this issue another Bench has replied to the question in the case earlier referred to and which is reported in 59 DLR. That Bench took the view that the expression ÓAv`vjZ ev UªvBey¨bvjÓ does not include the High Court Division. We refrain from recording our view on the interpretation of that expression occurring in rule 199ha, as it has been challenged in the Appellate Division.

42. But in consideration of the whole scheme of the Rules, 2007 we cannot ignore the fact that the door of justice cannot remain closed for indefinite period, when the various provisions of the Rules, 2007 are intended for speedy investigation and speedy trial, and yet the Rules are silent as to what will happen to a person who is arrested on allegations of some form of corruption and yet investigation is not completed within the stipulated period. Can he be detained ·for indefinite period because of the embargo on bail under rule 19Gha.

43. Our considered view is that rule 19gha can not operate as a bar for an indefinite period in case of persons like the present accused petitioners. This court can entertain their bail petitions, if not under section 497 or 498 of the Code, but under section 561A of the Code. Moreover, the principle laiq down in section 167 of the Code also comes into play. It may be mentioned that section 167 provides for consideration of bail prayers if investigation cannot be concluded within the period specified therein. Since Rule 12 of the Rules, 2007 make the Code applicable, by applying the principle laid down in section 167 read with section 561A of the Code, this Court, for securing the ends of justice, can consider the bail prayer of the accused petitioners.

44. When there is no remedy in any law, this Court in an appropriate case can invoke its inherent jurisdiction as provided under section 561 A of the Code, which is an extraordinary power and inherent to the High Court Division to prevent the abuse of process or to’ otherwise secure the ends of justice. In an appropriate case, the Court should not put it hands off in exercising the said power if such exercise serves the cause of justice .

45. In all the six cases we have seen that the investigation has not been completed within the period specified in the Rules, 2007. Assuming that the provisions of these Rules prohibit bail application, the Rules also provides for speedy investigation and trial thereby indirectly gives an implicit right to seek bail after the expiry of the specified period, as he cannot be put behind bars in the name of investigation for unlimited period, accused person and he should not be condemned before his conviction.

46. So, having no remedy available to them, we are inclined to enlarge on bail all the accused petitioners of Criminal Miscellaneous Case Nos. 8135, 14179, 13166, 7677, 9103 and 15148 of the year 2007 by applying the underlying principle of section 561A read with section 167 of the Code of Criminal Procedure.

47. Now the case of Criminal Miscellaneous Case No. 12489 of 2007 in which the accused petitioner Md Fazlur Rahman Patol is the petitioner. Here we find that there were two previous investigations over the selfsame matter and police submitted final report on both occasions. It appears that earlier two other complaints were made against the petitioners. In the present case we find that the allegations are the same i.e. the accused petitioner over telephone from Dhaka gave instructions to other accuseds to do some mischief. But none of the alleged offences committed according to petitioner’s order fall within the ambit of rule 14 or 15 read with rule 19(Neo)(5). The reference to rule 16(2) of the Rules, 2007 in the charge sheet with a further reference to GD Entry and the arrest of the accused petitioner in that connection, does not in any way affect the bail matter. The said Rule 16(2) simply empowers the members of the law enforcing agency to arrest a person suspected to be involved in a cognisable offence. Considering all these aspects, we are inclined to enlarge the accused petitioner on bail.

48. In the result, the Rules issued in Criminal Miscellaneous Case No. 8135 of 2007, Criminal Miscellaneous Case No. 15148 of 2007, Criminal Miscellaneous Case No. 9103 of 2007, Criminal Miscellaneous Case No. 7677 of 2007, Criminal Miscellaneous case No. 13166 of 2007 with Criminal Miscellaneous Case No. 14179 of 2007 and also the Rule issued in Criminal Miscellaneous Case No. 12489 are made absolute.

49. Let the accused petitioner AKM Reazul Islam, son of Alhaj Mvi, Kafil Uddin Ahmed, (in Criminal Miscellaneous No. 8135 of 2007), be enlarged on bail in GR Case No. 164 of 2006 pending in the Court of Magistrate, First Class, Faridpur to the satisfaction of the learned Chief Judicial Magistrate, Faridpur.

50. Let accused petitioner Haji Md Marur Hussain alias Haji Manir Hussain, son of Haji Ansar Uddin, (in Criminal Miscellaneous No. 14179 of 2007), be enlarged on bail in GR Case No. 115 of 2007 pending in the Court of Chief Metropolitan Magistrate Dhaka to the satisfaction of the learned Chief Metropolitan Magistrate, Dhaka.

51: Let accused petitioner Jahangir Hossain, son of Md Nur Hossain, (in Criminal Miscellaneous No. 15148 of 2007), be enlarged on bail in GR Case No. 445 of 2007 pending in the Court of Chief Metropolitan Magistrate Dhaka to the satisfaction of the learned Chief Metropolitan Magistrate; Dhaka.

52. Let accused petitioner Md Abul Bashar, son of late Sadaruddin (in Criminal Miscellaneous No. 9103 of 2007), be enlarged on bail in Kotwali Police Station Case No. 29 dated 17-3-2007 pending in the Court of First Class, Magistrate, Faridpur to the satisfaction of the learned Chief Judicial Magistrate, Faridpur.

53. Let accused petitioner Md Shahadat Hossain, son of Hossain Ahmed, (in Criminal Miscellaneous No. 7677 of 2007), be enlarged on bail in GR Case No. 40 of 2007 to the satisfaction of the learned Chief Judicial Magistrate, Hobigonj.

54. Let accused petitioner Md Joinal Abedin Mollah, son of late Hachen Mollah (in Criminal Miscellaneous No. 13166 of 2007) be enlarged on bail in Nagor Kanda Police Station Case No.9 dated 19-2-2007 pending in the Court of Magistrate First Class, Faridpur to the satisfaction of learned Chief Judicial Magistrate, Faridpur.

55. Let the accused petitioner Md Fazlur Rahman Patol, son of late Arshed be enlarged on bail in GR Case No. 81 of 2007 pending in the Court of Magistrate First Class, Amoli Adalat No.1, Lalpur, Natore to the satisfaction of the learned Chief Judicial Magistrate, Natore.

Communicate this order at once.