Bail
S. 497(i)- Gravity of the offence charged is not by itself sufficient to refuse bail--reasonable grounds for believing that the person seeking bail is guilty of such offence, must exist. Under this section in the case of offence punishable with death or transportation for life the heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence. Offences punishable with death or transportation for life--bail application--Reasonable grounds must exist.
Sub-section (1) of the said section evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and, as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has to ascertain as to whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by. the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt before it can come to the conclusion that its discretion no longer exists. Khalid Saigol Vs. State (1962) 14 DLR (SC) 321; (1962) PLD (SC) 495.
No prior assumption legally sustainable that merely because a charge of murder has been made, bail prayer must be refused, nor can a 'rule of practice' be invoked for such refusal-Discretion to be exercised by Court must be judicial discretion. Where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions properly if it were to proceed upon any prior I assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused, nor can there be any rule of practice upon the basis of which such a discretion can be judicially exercised. To act upon a rule of practice may, therefore, well constitute an arbitrary exercise of a discretionary power, for, the exercise of a discretion vested by law in a Court must be upon sound judicial principles after taking into account the facts and circumstances of each case. Khalid Saigol Vs. State (1962) 14 DLR (SC) 321; (1962) PLD (SC) 495.
Sub-section (2) comes into application when investigation or trial has already commenced and when the accused is in a position to satisfy Court that no reasonable grounds to refuse bail exists; which when done the Court must grant bail. Acquittal order is a reasonable ground for bail. Acquittal not only strengthens the presumption of innocence but also negative for believing the accused to be guilty. Khalid Saigol Vs. State (1962) 14 DLR (SC) 321.
Bail can be granted to an accused person under secs. 496 and 497 of the Code, at any stage prior to conviction being recorded.
The expression "admitted to bail" and "released on bail" have the same meaning. Sadiq Ali Vs. Crown (1966) 18 DLR (SC) 393.
Bail to a person accused of an offence punishable with death, can however be granted where the Court is of opinion that reasonable grounds do not exist that such offence has been committed.
If the Sessions Judge or the High Court forms an opinion that such reasonable grounds do not appear the prayer for bail may be allowed. The determination whether bail will be allowed to a person accused of an offence punishable with death or transportation for life will thus depend on the facts of each case. Nadra Vs. Jamit Khan (1968) 20 DLR (SC) 245.
In the matter of bail under section 497 Cr.P.C. for offences punishable with death or transportation for life, the Courts are only concerned in examining whether reasonable grounds do or do not exist to connect an accused person with that offence. The commitment of an accused person for trial on a murder charge which would disclose a prima facie case against him, would be a good ground for refusing bail to him during the pendency of the trial.. The position, however, will be different if the commitment order itself is found to be wholly unsatisfactory, which might call for its quashment and incidentally also furnish a reason for bailing out the accused, who has thus been committed for trial without any jurisdiction. Ghulam Rasool Vs. Ghulam Muhammad, (1971) 23 DLR (SC) 36.
Grant or refusal of bail in non-bailable cases is a matter of discretion with the primary court--The mode of using such discretion for offences punishable with death or transportation for life, explained.
This discretion has to be exercised in a judicial manner, with due regard to the circumstances of each case, without any propensity to unnecessarily jeopardise the liberty of the people who are accused of criminal offences. For offences punishable with death or transportation, this discretion is subject to the limitation that bail is not to be allowed to an accused person, if it is shown that there are reasonable grounds to believe that he has committed such an offence. In order to ascertain whether reasonable grounds exist or do not exist, the courts do not have to probe into the merits of the case; they have only to look at the material placed before them by the prosecution, to see whether some tangible évidence is available against the accused which if left unrebutted, may lead to the inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions, nor with tested and proved evidence, which the law requires for a person's conviction for an offence.
The principle enunciated in Md. Shafiq's case of the Supreme Court does not foreclose the question of grant of bail to an accused person after his commitment for trial under sec. 210 Cr.P.C. Under section 220 of the Code, commitment of an accused person during or until the trial, is subject to the provisions of bail contained in the Code which means that where, even at the time of commitment, it appears that any of the provisions of section 497 are attracted to allow bail to the accused, he need not be committed in custody to stand his trial. One patent instance, for example, would be where an accused may be found to be entitled to the benefit of proviso to sub-section (I) of section 497 on the ground of tenderness of age, womanhood, sickness or infirmity. Another would be where in terms of sub-section (2) of sec. 497, the Inquiry Magistrate finds that there are no reasonable grounds for believing that the accused has committed a non- bailable offence, but commits him nonetheless for trial, because there are no sufficient grounds for further inquiry into his case. Pending such a further inquiry into his guilt, the accused shall be released on bail. Nisar Ahmad Vs. The State (1971) 23 DLR (SC) 41.
Grounds of granting bail for offences involving death sentences-High Court not to embark on lengthy enquiry as to whether recorded evidence disclose an offence punishable under section 302 P.P. Code as that would be prejudicing the case on merits.
The policy of the law enunciated in Muhammad Ayub Vs. Muhammad Yaqub and the State is that persons accused of offences punishable with death or transportation for life are not to be released on bail, except on the condition laiti down in section 497.
Under section 497(I) if reasonable grounds. appear that person has been guilty of an offence punishable with death or transportation, bail may be granted only if the accused is a female or is under the age of sixteen years or is sick or infirm. Though none of those conditions applied in the case of the appellants, the learned Judge granted them bail by embarking on an inquiry whether the evidence recorded by the Committing Magistrate disclosed an offence punishable under section 302 or that the offence fell within the purview of section 325 PPC. This appraisal of the medical evidence was bound to affect the judgment of the trial Court for it could be assumed that in granting bail the High Court had concluded that there did not appear grounds for believing that they had been guilty of an offence punishable with death or transportation for life. It was, therefore idle to add: "without expressing any opinion on the merits of the case test it should prejudice a party's case the petitioners are ordered to be released on bail. Md. Aslam Vs. State (1967) 19 DLR (SC) 445.
The High Court is not to examine the merits of the prosecution case or the plea of defence in finding whether reasonable grounds appear for believing that the accused person has been guilty. Otherwise, any expression of opinion about the merits of the case by the High Court may dispose of the case before the trial has started.
The learned High Court Judge was not competent to make an assessment of the medical evidence and form an opinion whether the offence committed by the appellants fell under section 302 or 325 P.P.C. which presumably was the basis of the order granting bail to the appellants. Muhammad Aslam Vs. State (1967) 19 DLR (SC) 445.
Bail after commitment to Sessions Court.
An accused person may pray for his bail even after his commitment, by showing that his commitment has not been made to rest on any reasonable grounds, and that the committing Magistrate, instead of applying his mind to the case to reach a conclusion that a prima facie case has been made out, has merely transmitted the allegations of the prosecution, with no tangible evidence to support them, for trial by the Session Court. In such an event, apart from applying for his bail, the accused can ask for the quashment of such a commitment. In a situation like this, in order to justify the continued detention of the accused person, it would be for the higher Courts to see whether the commitment order does disclose that satisfaction of mind on the part of the Committing Magistrate, which is necessary for committing an accused person for trial on the basis that a prima facie case for an offence punishable with death or transportation has been made out against him. Nisar Ahmed Vs. The State (1971) 23 DLR (SC) 41.
Circumstances which the Courts take into consideration for forming an opinion in relation to bail under section 497 are related to the earlier stage.
The belief that the person accused has been guilty within the purview of section 497 would at an early stage rest on the accusation levelled against him on the report under section 173 Cr. P.C. and the evidence which the prosecution proposes to examine, the plea of defence, if any, raised during the investigation or any other special circumstances appearing in favour of the accused or against the prosecution. After the material witnesses in the case have been examined, the Sessions Judge or the High Court, if satisfied that reasonable grounds do not appear for believing that the accused has been guilty of an offence punishable with death or transportation for life, may grant bail to him. Nadra Vs. Jamait Khan (1968) 20 DLR (SC) 240.
Bail before arrest granted by the trial Court--Bailed men were suspected as persons privy to the murder--That is not a circumstance to whom the words "if there appear reasonable....for life" apply--Order of bail before arrest, valid. Abdur Rahman Vs. Fazal Qadim Khan (1967) 19 DLR (SC) 276
Bail may be cancelled when evidence discloses the accused are guilty of an offence punishable with death. High Court's order confirming the order of bail will not stand in the way of the accused taken into custody when there is evidence about his guilt.
No ground can be made out at the present stage for cancellation of the bail by this (Supreme Court) Court. Until the situation arises that there is reasonable ground for thinking that the respondents are guilty of the offence shown in the Challan, which is punishable with death or transportation for life, there would be no violation of law in allowing them to remain on bail.
It was urged that the result of the High Court's order confirming bail before arrest may be that they will remain on bail throughout the commitment proceedings and the trial as well. Ibid
Court cannot allow any person of whose case it is seized of to remain on bail if there be reasonable grounds for thinking that he has been guilty of an offence punishable with death or transportation for life, except on grounds of sickness or infirmity or of age, i.e. extreme youth or extreme old age or of sex. Ibid
The committing Magistrate and if a trial follows, the Sessions Court will in due course be in a position to determine the question of bail on this basis, and the High Court's order, directing bail before arrest, will then not stand in the way. Abdur Rahman Vs. Fazal Qadim Khan (1967) 19 DLR (SC) 276.
Evidence recorded during the inquiry may be the basis for formation of opinion as regards the offence.
The possibility that the evidence recorded during the inquiry may persuade the Sessions Judge or the High Court to believe that reasonable grounds do not appear for believing that the person accused has been guilty can't be altogether excluded. Nadra Vs. Jamait Khan (1968) 20 DLR (SC) 246.
Evidence led before the inquiry Magistrate may be used to find out whether reasonable grounds exist or not.
At the same time the person committed for trial may in an exceptional case be allowed bail if the evidence produced before the inquiry Magistrate prima facie makes out that reasonable grounds do not appear for believing that he had been guilty. Nadra Vs. Jamait Khan, (1968) 20 DLR (SC) 246.
High Court granted bail on one of several grounds--Supreme Court over-ruled granting bail on that ground--Accused entitled to move High Court for bail on other grounds.
If the accused-petitioner is advised that grounds exist for his bail other than the one on which bail was allowed to him by the High Court and which has not provisionally found favour with the Supreme Court, he may move a fresh application in the High Court urging those grounds. Riasat Ali Vs. Ghulam Muhammad (1968) 20 DLR (SC) 340.
Magistrate's power to grant bail--The High Court in its order merely said that the question of bail was left to be decided by the trial Magistrate after some evidence was recorded. This had been interpreted by the Sessions Judge that bail could not be granted without recording some evidence by the Magistrate.
This view is plainly fallacious, for the Magistrate derived his power of granting bail from section 497, and no restraint upon that power can be recognised except such as appears in the section itself. For the purpose of granting bail it is not a necessary condition that any evidence should have been recorded in the case.
When the complainant was attempting to frustrate the power of the Magistrate to grant bail, the duty of the Court clearly was to take such steps as were necessary to ensure that the complainant should not succeed in his tactics. Abdul Hye Khan Vs. State (1958) 10 DLR (SC) 179.
Bail- Application for bail moved just after commitment of the accused to Sessions Court-Consideration which should weigh in dealing with such application.
It is not possible to determine this point one way or the other without a full appraisal of the evidence that has been led or may be led, and the courts should not be invited to do that, as it would lead to pre-judging material issue in the case while deciding the bail application. Such an attempt before the higher Courts, in particular, is wholly undesirable, as an expression of opinion by them on the merits of any point of substance in the case is bound to prejudice its ultimate decision. Nisar Ahmad Vs. The State (1971) 23 DLR (SC) 41.
Undue delay in holding the trial, due to the prosecution's procrastination will be a valid ground of granting bail and question of granting bail in such a case need be considered with care.
The prosecution cannot be permitted to enlist the will of the Court on its side directly or indirectly in prolonging the worries and harassment of an accused person which are inevitably caused by his protracted detention without trial. Md. Aslam Vs. State (1967) 19 DLR (SC) 445.
But delay in the prosecution of a case or the procrastination of the proceeding in a trial furnishing as a ground for bail have to be weighed and judged in each case on its own merits.
Leisurely steps taken in filing the challan, tardy and halting production of evidence or seeking of unnecessary adjournment except those necessitated by force of circumstances must be strongly deprecated. Riasat Ali Vs. Ghulam Muhammad (1968) 20 DLR (SC) 339.
Circumstances which disentitles an accused to get bail. Accused's right to look after his case not to be unnecessarily curtailed.
No person should be deprived of his liberty or denied the opportunity to look after his own case, except for sufficient and cogent reasons. Thus where the accused person is capable of absconding or of tampering with the witnesses, the maximum restraint may well be justifiably imposed. Khalid Saigal Vs. State (1962) 14 DLR (SC) 321.
Person seeking bail must surrender and appear before Court when the application for bail is being heard. Khalid Saigol Vs. State (1962) 14 DLR (SC) 321.
Cancellation of bail granted earlier does not necessarily mean that the accused was put into police custody and hence, no action under section
224 P.P. Code required against him is lawful. Held: The cancellation of the bail by the Sessions Judge did not in the circumstances of the present case, entail the consequence that he had to be ordered to be given into the police custody without there being a request in that behalf by the police itself. Sadiq Ali Vs. State (1966) 18 DLR (SC) 393.
Person seeking bail must surrender and appear before Court when the application for bail is being heard.
It is an essential condition of the administration of justice, in a case affecting an individual or individuals that the persons concerned should submit to the due process of justice and, as such when the appellant himself was "engaged in setting that judicial order at naught", High Court would have been entirely justified in refusing to entertain the bail application until the appellant had submitted to the due process of justice. Khalid Saigol Vs. State (1962) 14 DLR (SC) 321.
The word 'appear'--Does not mean voluntary appearance but means appearance in answer to a process of Court.
The word "appears" in sections496 and 497 obviously contemplate appearance in answer to process issued by a Court. The view expressed in Sadiq Ali's case in regard to the word "appears" has to be modified to the extent that it does not mean voluntary appearance.
Under sections 496 and 497, the court can bail out a person only if he has been placed under actual custody or appears in answer to process issued or is brought before the Court by the police lice or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Muhammad Ayub Vs. Muhammad Yakub, (1967) 19 DLR (SC) 38.
A man entertaining apprehension of arrest but not yet been taken into custody may be released, in appropriate circumstances, on bail.
On principle, there is no difference between the case of a person against whom a warrant of arrest has been issued and one whose arrest, at the hands of the police, without a warrant, is imminent.
The word "appears" applies to a person summoned to appear before Court as also when he voluntarily appears in Court. No bail, even in case of imminent police arrest, unless the person appears in Court and also in such cases bail can be granted only when refusal of it would cause irreparable harm to him. Sadiq Ali Vs. State (1966) 18 DLR (SC) 393.
-Expunction of offending remarks-The paragraphs containing offending observations and showing lack of judicial decorum are not, it is submitted, essential for maintaining the order cancelling the bail. Such paragraphs will be treated as expunged. MA Wahab vs State 42 DLR (AD) 223.
Bail-Court's attention was drawn to the fact that in the FIR appellant No. 1 was not alleged to have done any overt act nor his name was there in the dying declaration-Trial had not yet begun even though charges had been framed more than a month before.
Copy of the trial Court's order produced in Court indicating that trial may be delayed further Appellants allowed to remain on bail. Ashraf Ali Mondol vs State 42 DLR (AD) 8.
Bail-Bail in a pending appeal-In a pending criminal appeal when an appellant files an application for bail, the Court should not ordinarily issue a Rule. The Court may grant or refuse bail or ask the petitioner to come up with a separate petition and may hear the State if necessary before disposing of an application for bail. Monju Kumar Saha vs State 44 DLR (AD) 354.
Bail-Attaching condition to bail is not permitted by law, it was contended from the Bar. Iqbal alias Salim vs State 40 DLR (AD) 279.
Bail-Purpose of granting bail may be defeated if payment of the fine is made a condition. Iqbal alias Salim vs State 40 DLR (AD) 279.
Bail-Appellant's name not mentioned in the FIR nor any material could be gathered against him by police-Bail was not allowed on this contention by High Court Division but appeal was allowed by Appellate Division. SK Kumar vs State 40 DLR (AD) 290.
Bail- Appellant's bail prayer on the ground of being a BA examinee. The appellant then alone prayed for bail by an independent application making out a special case for bail. Nurul Islam vs State 40 DLR (AD) 244.
Bail- Bail in a case where the sentence is short duration. In the present case the sentence is of two years and the disposal of appeal in question normally takes time. In that circumstances the High Court Division ought to have exercised judicial discretion in matter of granting bail to the appellants. The judicial discretion having not been properly exercised in the facts of the case the order is set aside and the appeal allowed. Dhanu Mia vs State 43 DLR (AD) 119.
Bail Matter-Interim bail granted by the Appellate Division during pendency of a criminal revision case in the High Court Division against trial Court's order of conviction and sentence of three years RI under sections 325/34, Penal Code-Interim bail not to be allowed to continue for indefinite period when the sentence of imprisonment is hanging-interim bail allowed to continue further on specific terms. Nizamuddin vs State 42 DLR (AD) 183.
Bail Matter-Ad interim bail granted by the Appellate Division during the pendency of a criminal appeal in the High Court Division against an order of conviction and sentence of five year's RI with fine under section 304 Penal Code-Adinterim bail cannot be allowed to continue simply because an appeal against conviction is pending in the High Court Division-Interim bail to continue further on specific terms only. Abdul Hakim Howlader vs State 42 DLR (AD) 178.
Anticipatory Bail-An omnibus statement that he is a political personage and the Magistrates or the lower court/ tribunal Judges, as the case may be are controlled by the government (which has neither factual nor legal basis these days) is not enough. Equally well, the Judges of the High Court Division concerned must also assign reason for their satisfaction on this primordial point, which must be reckoned to be the door opener. Durnity Daman Commission vs Dr. Khandaker Mosharraf Hossain, 66 DLR (AD) 92
Bail- If the accused persons instead of selling the trees can deposit about twenty five hundred crore taka they may be enlarged on bail. If the accused want to withdraw any money from their personal accounts in order to cover the deficient amount, we direct the commercial banks with which the accused persons are maintaining accounts to honour cheque(s) if any is presented for withdrawal of the money subject to the condition that the withdrawn money would be handed over to the Chairman of the Commission. Durnity Daman Commission vs Mohammad Hossain, 69 DLR (AD) 1
Bail in a Money Laundering Case- The proposal made by the counsel is reasonable one the Durnity Daman Commission has no objection if the Destiny Group can deposit at this stage about taka twenty eight hundred core or if the accuseds can deposit the sale proceeds from their own accounts. If the accused persons can collect the proposed amount, this amount will be distributed to the affected persons after verification. Durnity Daman Commission VS Mohammad Hossain, 69 DLR (AD) 1
Bail with Directions-Jailors, Dhaka and Kashimpur Central Jail to allow the accused persons to hold meeting of the companies if necessary and to execute any document or documents, resolutions, deeds etc. as may be necessary for the purpose of selling 35 lac matured trees owned by Destiny Tree Plantation Limited. We also direct the Jail Authority to allow all sort of co-operation as may be necessary for the purpose of completing the transaction for sale of the trees and receiving sale proceeds for onward transmission to the Chairman, Durnity Daman Commission for distribu- tion to the affected persons on the basis of list. The Special Judge shall admit the accuseds on bail to its satisfaction subject to the fulfilment of the terms. Durnity Daman Commission vs Hossain, 69 DLR (AD) 1
