Appellate Division (Criminal) :
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Syed Mahmud Hossain J
AHM Shamsuddin
Choudhury J
Order
March 9th, 2014.
State…………………………..Petitioner
vs
Arman…………….Respondents
Constitution of Bangladesh, 1972
Article 103
The High Court Division enlarged the accused on ad-interim bail for a period of 6 (six) months. The learned Judge-in-Chamber without making any interim order of stay directed the office to place the matter in court for hearing. In the meantime the period of interim bail expired by efflux of time. Petition become infructuous. . ….. (6)
Nari-o-Shishu Nirjatan Daman Ain (VIll of 2000) Section 28
Bail-In granting bail the Court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint., (5)
Mahbubey Alam, Attorney-General, instructed by Madhu Malati Chy Barua, Advocate-on-Record.
–For the Petitioner.
None Represented -For the Respondent.
Order
Md Muzammel Hossain CJ: This petition at the instance of the state is against an interim order of the High Court Division enlarging the accused respondent Arman on ad-interim bail for a period of 6 (six) months in Nari-o-Shishu case No. 148 of 2011 pending before the Nari-o-Shishu Nirjatan Daman Tribunal, Narsingdi for trial. We have perused the FIR, the medical report of the victim and other materials on record.
2. Learned Attorney-General argued that the High Court Division exceeded its norms in admitting the respondent on ad-interim bail against whom there are allegations of committing heinous crime. It is further contended that if an accused person is allowed to remain on bail after committing such heinous crime which shocks- ones conscience, he will be emboldened to recur similar type of offence. In view of the above, he argued that it is a fit case in which this Division should interfere with the impugned interim order.
3. On perusal of the FIR we have noticed that there are specific allegations against the accused respondent who is 65 years old of committing sexual assault on the victim who is barely a minor girl. It is alleged that the accused was caught red handed just immediately after the incident and that he had confessed his guilt. Accordingly, he was handed over to police on the spot. The medical report corroborates the allegations of sexual assault.
4. The High Court Division has discretionary power to grant an accused person on bail even in respect of serious offences like the one but it should not exercise its power if their appear reasonable grounds for believing as visualized in prohibitory part of section 497(1) of the Code. Grant or refusal of bail in respect of an offence punishable, with imprisonment for life is essentially a question of fact in each particular case and there cannot be any fixed formula for the exercise of discretion. In respect of offences punishable under the Nari-o-Shishu Nirjatan Daman Ain, there is specific bar under section 19(2) (ka) in exercising the power of granting bail without hearing the informant and that the Tribunal or Court may grant bail to an accused person on assigning proper reasons if it is satisfied that the accused is a woman or child or sick or infirm. In this case the High Court Division has overlooked these provisions and granted bail without assigning any reason and also without hearing the informant.
5. In granting bail the court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint.
6. In the. case in hand, the High Court Division enlarged the accused-respondent on ad-interim bail for a period of 6(six) months on 31st January, 2012. The learned Judge-in-Chamber without making any interim order of stay directed the office to place the matter in court for hearing. In the meantime the period of interim bail expired by efflux of time: In view of the above, this petition became infructuous.
This petition is accordingly disposed of with, the above observations. A Division Bench presided over by Moyeenul Islam Chowdhury, J directed to dispose of the appeal by 20th June, 2013.
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Syed Mahmud Hossain J
AHM Shamsuddin
Choudhury J
Order
March 9th, 2014.
State…………………………..Petitioner
vs
Arman…………….Respondents
Constitution of Bangladesh, 1972
Article 103
The High Court Division enlarged the accused on ad-interim bail for a period of 6 (six) months. The learned Judge-in-Chamber without making any interim order of stay directed the office to place the matter in court for hearing. In the meantime the period of interim bail expired by efflux of time. Petition become infructuous. . ….. (6)
Nari-o-Shishu Nirjatan Daman Ain (VIll of 2000) Section 28
Bail-In granting bail the Court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint., (5)
Mahbubey Alam, Attorney-General, instructed by Madhu Malati Chy Barua, Advocate-on-Record.
–For the Petitioner.
None Represented -For the Respondent.
Order
Md Muzammel Hossain CJ: This petition at the instance of the state is against an interim order of the High Court Division enlarging the accused respondent Arman on ad-interim bail for a period of 6 (six) months in Nari-o-Shishu case No. 148 of 2011 pending before the Nari-o-Shishu Nirjatan Daman Tribunal, Narsingdi for trial. We have perused the FIR, the medical report of the victim and other materials on record.
2. Learned Attorney-General argued that the High Court Division exceeded its norms in admitting the respondent on ad-interim bail against whom there are allegations of committing heinous crime. It is further contended that if an accused person is allowed to remain on bail after committing such heinous crime which shocks- ones conscience, he will be emboldened to recur similar type of offence. In view of the above, he argued that it is a fit case in which this Division should interfere with the impugned interim order.
3. On perusal of the FIR we have noticed that there are specific allegations against the accused respondent who is 65 years old of committing sexual assault on the victim who is barely a minor girl. It is alleged that the accused was caught red handed just immediately after the incident and that he had confessed his guilt. Accordingly, he was handed over to police on the spot. The medical report corroborates the allegations of sexual assault.
4. The High Court Division has discretionary power to grant an accused person on bail even in respect of serious offences like the one but it should not exercise its power if their appear reasonable grounds for believing as visualized in prohibitory part of section 497(1) of the Code. Grant or refusal of bail in respect of an offence punishable, with imprisonment for life is essentially a question of fact in each particular case and there cannot be any fixed formula for the exercise of discretion. In respect of offences punishable under the Nari-o-Shishu Nirjatan Daman Ain, there is specific bar under section 19(2) (ka) in exercising the power of granting bail without hearing the informant and that the Tribunal or Court may grant bail to an accused person on assigning proper reasons if it is satisfied that the accused is a woman or child or sick or infirm. In this case the High Court Division has overlooked these provisions and granted bail without assigning any reason and also without hearing the informant.
5. In granting bail the court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint.
6. In the. case in hand, the High Court Division enlarged the accused-respondent on ad-interim bail for a period of 6(six) months on 31st January, 2012. The learned Judge-in-Chamber without making any interim order of stay directed the office to place the matter in court for hearing. In the meantime the period of interim bail expired by efflux of time: In view of the above, this petition became infructuous.
This petition is accordingly disposed of with, the above observations. A Division Bench presided over by Moyeenul Islam Chowdhury, J directed to dispose of the appeal by 20th June, 2013.
