High Court Division :
(Criminal Appellate Jurisdiction)
Syed Md Ziaul Karim J
SM Zakir Hossam J
Shagor Prodhan .............
State ..... Respondent*
November 16th, 2016
Explosive Substance Act (VI of 1908) Sections 2 and 3
Bail in a explosive substances case-No legal or moral compulsion to keep a person in Jail merely on the allegation of commission of offences punishable with death or imprisonment for life. Ultimate conviction and incarceration of a mate conviction and incarceration of a guilty person can repair the wrong caused by mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. ..... [14)
Reasal Ali vs Golam Md 20 DLR (SC) 339; Anwar Hossain vs State 5 MLR 105 5BLC 143 and Dulal Mia vs State 44 DLR 209 Ref.
Taimur Alam Khandaker, Advocate-For the Accused-Appellant.
Shahidul Islam, DAG with Md Ensanuddin Sheikh, AAG and Abdul Khaleque Salim, AAG-For the State Respondent.
Syed Md Ziaul Karim J : Supplementary Affidavit filed to-day do form part of the substantive petition of appeal.
2. By this appeal the appellant seeks bail in a case instituted under Sections 3, 4 of the Explosive Substances Act, 1908, pending in the Special Tribunal No.1, Narayangonj.
3. Material facts leading to this appeal are that 4-1-2014 Md Emdadul Islam, Driver or Duranta Paribahan lodged first information report (briefly as FIR) with Siddirgonj Police Station against the appellant and 18 others alleging that on 3-1-2014 at 8-00 am all the accused being with armed, lathi, rod, cocktail etc. attacked his car and exploited bombs aiming at car, then set fire to the bus and one tempo causing mischief for Taka 1,50,000.
4. The Police after investigation submitted charge sheet on 31-12-2014 accusing only 4 accused including the appellant and final report in favour of the rest accused. However such Police report was not accepted, rather it was sent for further investigation.
5. The case is pending for further investigation.
6. Having unsuccessfully approached for bail in the Court below, the accused preferred this application for bail and obtained the present Rule.
7. The learned Advocate appearing for the appellant support the appeal and submits that as the case is pending for further investigation and there is no immediate prospect of concluding investigation, so the appellant may be enlarged on bail.
8. The appeal is opposed by the learned Deputy Attorney General.
9. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
10. On going to the materials on record it transpires that the case was instituted on 4-1-2014 and the charge sheet was submitted on 31-12-2014 but the said charge sheet was not accepted and the learned Judge of the Tribunal referred the same for further investigation. Moreso, we find that out of 19 accused 3 accused are on bail. Other 15 accused are not sent up in chargesheet. The appellant is in custody. It appears that there is no specific allegation against the appellant. Therefore we failed to discriminate the case the appellant with that of the other co-accused who are enlarged on bail. In such situation we feel that there is no immediate prospect of commencement of trial. So undue delay in holding trial is a valid ground for bail. At now we do not find any sufficient ground for believing that the accused committed the offence as alleged by the prosecution.
11. We should bear in mind, credibility of testimony oral and circumstantial depends considerably on a judicial evaluation of the totality, not isolated, scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
a) The onus of proving everything essential to the establishment of the charge against the accused, lies on the prosecutor.
b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.
c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should, escape than that one innocent person suffer.
d) There must be clear and unequivocal proof of the corpus delicit.
e) The hypothesis of delinquency should be consistent with all the facts proved.
12. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspire of oath is of no avail.
13. We have meticulously examined the FIR, and other materials on record but from there also we failed to discover any material against the accused for believing that he has been guilty which prohibits granting bail. It is pertinent to point out that the case is stir pending, and the accused is in custody for a long time.
In such situation, we feel that there is no immediate prospect of concluding trial. To that effect law has been well settled that when there is a unusual delay in holding trial and the accused is in custody for a long time knowing not when the trial will be concluded, the accused in view of uncertainty of trial may be granted bail. Moreover undue delay in holding trial due to prosecution procrastination will be a valid ground for granting bail of the accused. With this regard reliance can be placed in the cases of Reasat Ali vs Golam Md 20 DLR (SC 339, Anwar Hossain vs State 5 MLR 105 = 5 BLC 143 and Dulal Mia vs State, 44 DLR 209.
14. We are to bear in mind that bail in non bailable offence is a matter of discretion of the Court which has to be exercised with due care and caution and the facts and circumstances of the case. For an offence punishable with death or imprisonment for life, an accused charged with the same not to be released on bail if there are reasonable grounds for believing that the accused committed such an offence. Court to examine the data available in the case to find out whether reasonable grounds exist to make a nexus between the accused and the crime alleged against him. Court's belief on the point has to rest on the accusations made in the report to the Police, the nature and credentials of the evidence, which the prosecution proposes to lead in the case and all other relevant circumstances. Onus lies on the proscription to disclose those reasonable grounds and the Court has to examine the data available in the case. No legal or moral compulsion to keep a person in Jail merely on the allegation of commission of offences punishable with death or imprisonment for life. Ultimate conviction and incarceration of a mate conviction and incarceration of a guilty person can repair the wrong caused by mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.
On further exploration of the materials on record and preponderant judicial views emerging out of the authorities referred, to above we are lead to the conclusion that in all respect the prosecution failed to discharge its responsibilities. Therefore, we hold that bail of the accused is not to be withheld merely as a punishment and the requirements as to bail are merely to secure the attendance of the accused at the trial.
Significantly the prosecution failed to bring any allegation that the accused will tamper or attempt to tamper with witnesses and to obstruct the course of Justice if he be released on bail. Therefore, the submissions advanced by the learned Counsel for the defence are the correct exposition of law and facts. To that end in view we are inclined to enlarge the accused on bail. Thus the merit having merit succeeds.
15. In view of foregoing narrative, the appeal is allowed. Let the appellant Shagor Prodhan, be released on bail on furnishing bail bond to the satisfaction of the learned Judge of Special Tribunal No.1, Narayangonj.
Office is directed to communicate the order at once.