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Withholding bail is a measure of punishment

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Apellate Division :
 (Criminal)
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Md. Bazlur Rahman J
Order
August 31st, 2016
Shafik Rahman ………
.............. Petitioner
vs
State ……………..
…………………..Respondent
Code of Criminal Procedure (V of 1898)
Section 497(1) proviso read with section 173
A bail should 'not be withheld as a measure of punishment. On consideration of the age of the appellant and the health condition as available with the record, we are of the view that the appellant should get the privilege of bail as per proviso to sub section (1) of section 497 of the Code.
It is on record that the appellant Shafik Rahman is an old man of 82 years. On perusal of the case diary, we are satisfied that the investigation of the case wil1 take sometimes because the incident has occurred in USA and there is no certainty as to when the investigation officer will complete investigation after collecting evidence from USA. Though the learned Attorney-General submits that the police would be able to complete investigation within 3 (three) months; it is difficult to say that the police will complete the investigation within such period. It is on record that the investigating agency have not yet gone to USA for collecting evidence.         .... (6 & 5)
Khondker Mahbub Hossain. Senior Advocate (with AJ Mohammad Ali. Senior Advocate and Asaduzzaman Advocate) instructed, by Syed Mahbubar Rahman. Advocate-on-Record-For the Petitioner.
Mahbubey Alam, Attorney-General instructed by Haridas Paul, Advocate-on-Record--For the Respondent.
Order
This appeal by leave is directed from a judgment of the High Court Division in Criminal Miscellaneous Case No.18158: of 2016 arising out of GR Case No. 294 of 2015 pending in  the court of Chief Metropolitan Magistrate Dhaka rejecting the application for bail summarily.
2. Over an occurrence alleged to have been committed on 3-8-2015, an FIR was lodged with the Paltan Model Police Station. In course of investigation the investigating agency have found the complicity of the appellant Shafik Rahman in the alleged occurrence and apprehended him on 16-4-2016 and produced him before the learned Magistrate with a forwarding report. He was taken on remand and ultimately he was sent to jail custody. The allegation is that the appellant along with other accused namely Rizbi Ahmed Ceasar and Johonnes Thaler has hatched up a conspiracy to abduct Mr Sajib Wajed Joy, the Adviser of Information and Communication Technology of the Prime Minister and that the said incident revealed from a judgment in USA in which FBI agent Robert Luseyk and Johannes Thaler and Rizbi Ahmed Ceasar had been convicted.
It is alleged that the appellant and some other persons provided fund to those persons for abduction of Mr Sajib Wajid Joy in USA.
3. Mr AJ Mohammad Ali, learned counsel appearing for the appellant submits that the appellant Shafik Rahman is a very old man aged, about 82 years and his health condition is now critical, and serious. Since there is no certainty as to when the investigation of the case will be completed, ends of justice demands that the appellant may be enlarged on bail.
4. Mr Mahbubey Alam, learned Attorney-General has strongly opposed the prayer for bail of the appellant. He submits· that the appellant Shafik Rahman is the principal conspirator and has financed Rizbi Ahmed Ceasar to pay the money to FBI agent and since the case is under investigation, on consideration of the gravity of the offence;' if the accused appellant is enlarged on bail, the investigation of the case will be hampered.
He has also submitted that as per admission of the appellant, the police have recovered incriminating documents in support of the allegation from his residence and these documents prove that this appellant was involved in the conspiracy to abduct Mr Sajib Wajed Joy from USA.
5. We have given our anxious consideration to the facts and circumstances of the case. Since the case is under investigation, we are not inclined to make any observation touching on the merit of the case.
It is on record that the appellant Shafik Rahman is an old man of 82 years. On perusal of the case diary, we are satisfied that the investigation of the case will take sometimes because the incident has occurred in USA and there is no certainty as to when the investigation officer will complete investigation after collecting evidence from USA.
Though the learned Attorney General submits that the police would be able to complete investigation within 3(three) months; it is difficult to say that the police will complete the investigation within such period. It is on record that the investigating agency have not yet gone to USA for collecting evidence.
6. A bail should not be withheld as a measure of punishment. On considration of the age of the appellant and the health condition as available with the record, we are of the view that the appellant should get the privilege of bail as per proviso to sub section (1) of section 497 of the Code of Criminal Procedure. We are inclined, to enlarge the appellant on bail for a limited period till the date of conclusion of the investigation of the case.
7. Let the appellant Shafik Rahman son of Late Professor Sayedur Rahman of House No., 15, Eskaton Garden, Ramna. Dhaka be enlarged on bail for a period of 3(three) months or till the date of submission of the police report, whichever is earlier, to the satisfaction of the Chief Metropolitan Magistrate, Dhaka, subject to the submission of his passports to the Chief Metropolitan Magistrate, if not already seized by the investigating agency in the meantime. The Magistrate shall be at liberty to take the appellant in custody if he misuses the privilege of bail.
The appeal is allowed in the above terms.

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