Appellate Division :
(Criminal)
Surendra Kumat Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Mohammad Bazlur
Rahman J
Order
March 14th, 2016
Mia Nuruddin (Apu) …………. Petitioner
vs
State and another……………………Respondents
Code of Criminal Procedure (V of 1898)
Section 498
Penal Code (XLV of 1860)
Sections 161 and 165A
In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True; the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person.
Khandaker Mahbub Hossain, Senior Advocate instructed by Zahirul Islam. Advocate-on-Record-For the Petitioner.
Khurshid Alam Khan, Advocate instructed by Madhumalati Chy Barua Advocate-on-Record-For the Respondent.
Mahmuda Begum, Advocate-on-Record-For the Respondent No.2.
Order
Surendra Kumar Sinha CJ : This petition is from a judgment of the High Court Division by which it has discharged the Rule and refused to enlarge the petitioner Mia Nuruddin (Apu) on bail pending trial.
2. Mr Khondaker Mahbub Hossain, learned Counsel appearing for the petitioner has taken us to the charge framing order of the petitioner.
He submits that the offence being bailable section, the High Court Division has committed fundamental error in refusing on charge on bail. We have perused the order of charge and noticed that the petitioner has been charged with for offences punishable under sections 161/165(A) of the Penal Code which are bailable offences. In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code of Criminal Procedure does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right.
3. Mr Khurshid Alam Khan, submits that the allegation against the petitioner is serious one and therefor, the High Court Division is justified in rejecting the prayer for bail. True, the allegation is serious but it does not confer a Court the power to refuse the’ prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. The judgment of the High Court Division is set-aside. The petitioner Mia Nur Uddin (Apu) son of late Chan Miah Mridha, of village-Kotalpur, PS-Goshairhat, District Shariatpur, At present: Hawa Bhaban, Gulshan-2 be enlarged on bail to the satisfaction of the Special Judge, Court No.3, Dhaka pending trial of the case.
This petition is accordingly disposed of with the above observations and direction.
(Criminal)
Surendra Kumat Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Mohammad Bazlur
Rahman J
Order
March 14th, 2016
Mia Nuruddin (Apu) …………. Petitioner
vs
State and another……………………Respondents
Code of Criminal Procedure (V of 1898)
Section 498
Penal Code (XLV of 1860)
Sections 161 and 165A
In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True; the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person.
Khandaker Mahbub Hossain, Senior Advocate instructed by Zahirul Islam. Advocate-on-Record-For the Petitioner.
Khurshid Alam Khan, Advocate instructed by Madhumalati Chy Barua Advocate-on-Record-For the Respondent.
Mahmuda Begum, Advocate-on-Record-For the Respondent No.2.
Order
Surendra Kumar Sinha CJ : This petition is from a judgment of the High Court Division by which it has discharged the Rule and refused to enlarge the petitioner Mia Nuruddin (Apu) on bail pending trial.
2. Mr Khondaker Mahbub Hossain, learned Counsel appearing for the petitioner has taken us to the charge framing order of the petitioner.
He submits that the offence being bailable section, the High Court Division has committed fundamental error in refusing on charge on bail. We have perused the order of charge and noticed that the petitioner has been charged with for offences punishable under sections 161/165(A) of the Penal Code which are bailable offences. In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code of Criminal Procedure does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right.
3. Mr Khurshid Alam Khan, submits that the allegation against the petitioner is serious one and therefor, the High Court Division is justified in rejecting the prayer for bail. True, the allegation is serious but it does not confer a Court the power to refuse the’ prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. The judgment of the High Court Division is set-aside. The petitioner Mia Nur Uddin (Apu) son of late Chan Miah Mridha, of village-Kotalpur, PS-Goshairhat, District Shariatpur, At present: Hawa Bhaban, Gulshan-2 be enlarged on bail to the satisfaction of the Special Judge, Court No.3, Dhaka pending trial of the case.
This petition is accordingly disposed of with the above observations and direction.
