LEX/BDHC/0187/1992

Equivalent Citation: 1992 12 BLD 507

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)
Criminal Misc. Case No. 156 of 1992
Decided On: 12.05.1992
Appellants: Mustafizur Rahman
Vs.
Respondent: The State
Hon'ble Judges:
Habibur Rahman Khan and Muhammad Abdul Mannan, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Rokanuddin Mahmud, Advocate
For Respondents/Defendant: Aminul Huq, Attorney-General
Case Note:
Bail
Bail - Member of Parliament accused under section 109/111 of the Banking
Companies Act, 1991--Chief Metropolitan Magistrate, Dhaka, took cognizance
of offence--issued warrant of arrest--Police could not secure arrest-
Proclamation and attachment under sections 87 and 88 Cr. P.C. issued--
properties attached petitioner instead of surrendering before the Court of
Chief Metropolitan Magistrate, filed application for bail before the High Court
Division being present in Court, with a prayer for anticipatory bail
apprehending arrest and harassment by police--High Court Division disallowed
such prayer, but subject to direction of the Court and good offices offered by
the Attorney-General, was allowed to go to Dhaka Central Jail with a further
direction that proper arrangement be made by the law enforcing authority for
the movement of the accused petitioner from the Supreme Court premises to
the Dhaka Central Jail with dignity and honour available to a Member of
Parliament and that the accused petitioner be given a class I Division as an
under trial prisoner in the jail as permissible under the Jail Code.
Code of Criminal Procedure, 1898 (V of 1898)
Section 496/497/498--Petitioner accused under section 109/111 of the
Banking Companies Act, 1991--Chief Metropolitan Magistrate, Dhaka, took
cognizance of the offence--issued warrant of arrest--police could not secure
arrest--proclamation and attachment of properties under sections 87 and 88
Cr. P.C.--Petitioner instead of surrendering before the issuing warrant of
arrest filed application for bail before the High Court Division with a prayer for
anticipatory bail seeking protection of the Court apprehending arrest and
harassment by the police--Petitioner present in court--Chairman of the
Bangladesh Commerce and Investment (B.C.I) and Member of Jatiya Sangsad,
man of status in society--Case against him as alleged started by some

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interested quarter at the behest of his political enemies out of grudge to
malign and humiliate--Apprehension of being hackled and humiliated by the
police and his enemies if he goes to surrender before the Court of the Chief
Metropolitan Magistrate, Dhaka,--Hence compelled to prefer application
before the High Court Division for safety and security of his life and prestige.
Whether an application for anticipatory bait could be made by a person
against whom a case has been started and a process of the Court has already
been issued--
Held: The court finds it difficult and reluctant to allow the prayer for bail
without requiring him first to surrender before the Court below. The Court
also do not consider it reasonable to send the accused to the Court of
Metropolitan Magistrate with a direction to grant him bail as the subordinate
court should be left with its own discretion in dealing with the matter of bail.
Crown Vs. Khushi Mohammad, 5 DLR (S.C.) 383; Mohammad Ayub Vs.
Muhammad Yakub and another, 19 DLR (S. C) 39--cited
JUDGMENT
Habibur Rahman Khan, J.
1 . This application with a prayer for anticipatory bail has been filed on behalf of Mr.
Mustafizur Rahman who is an accused in the case being P. Case No. 382A/92 under
Section 109/111 of the Banking Companies Act, 1991. A petition of complaint having
been lodged by the General Manager, Banking Control Department, Bangladesh Bank
against the petitioner and 19 other Directors of the Bangladesh Commerce and
Investment (B.C.I.), The Chief Metropolitan Magistrate. Dhaka, by his Order dated
28.4.92 after taking cognizance of the offence issued warrant of arrest against all the
accused persons. The police could not secure the arrest of the petitioners and therefore,
Order of proclamation and attachment under Sections 87 and 88 of the Code of Criminal
Procedure was issued by the Court of Metropolitan Magistrate on 4.5.92 and the
properties of the accused petitioner was accordingly attached. Coming to know about
the warrant of arrest issued against him, the accused petitioner instead of surrendering
before the Court issuing warrant of arrest, has filed the instant application before this
Court with a prayer for anticipatory bail seeking protection of the Court apprehending
arrest and harassment by the police.
2 . It is submitted that the petitioner is the Chairman of B.C.I. and a Member of the
Jatiya Sangsad and is associated with many other organisations having a status in the
society and the case has been started by some interested quarter at the behest of his
political enemies out of grudge so as to malign and humiliate him. It is also submitted
that if he goes to surrender before the Court of Chief Metropolitan Magistrate, there is
apprehension that he may be hackled and humiliated by the police and by his enemies
and therefore, he has been compelled to prefer the application before this Court for the
safety and security of his life and prestige.
3 . A preliminary question having been raised as to whether an application for
anticipatory bail could be made by a person against whom a case has been started and
process of the Court has already been issued.
4 . Mr. Rokanuddin Mahmud submits that in case this application be not treated as an

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application in anticipation of arrest by the police without warrant, can be considered as
a prayer for bail in anticipation of the arrest after the warrant issued by the Court
Finding himself in a difficult position to substantiate his point relating to anticipatory
bail, the learned Counsel preferred to concentrate his argument pressing for bail of the
petitioner invoking the aid of S. 498 Cr. P.C. by which the High Court and the Court of
Sessions have been vested with the concurrent jurisdiction and power of granting bail.
The learned Counsel submits that though there is no specific provision for anticipatory
bail in the Code, the High Court enjoys very wide power in granting bail to any person
found to have appeared before the Court with a prayer for bail and such power is not
fettered by any other provision of that Code.
5 . According to the learned Counsel, the main considerations before the Court will be
whether the accused appearing before this Court has got a prima facie good case for
being released on bail, if it is found that there are valid reasons for his not surrendering
before the court issuing the warrant of arrest. In support of his contention the learned
Counsel Mr. Rokanuddin Mahmud has cited the case of the Crown Vs. Khushi
Mohammad reported in 5 D.L.R. (F.C.) 86, the case of Sadeque Ali Vs. The State
reported in 18 D.L.R. (S.C) 383 and the case of Mohammad Ayub Vs. Muhammad Yakib
and another reported in 19 D.L.R. (S.C.) 39. Relying on the provision of Section 498 Cr.
P.C. and the above cited decisions the learned Counsel for the petitioner submits that it
is a fit case where the jurisdiction of the High Court Division can be invoked for
granting bail to the accused petitioner.
6 . Mr. Aminul Hoque the learned Attorney-General appearing for the State does not
dispute the proposition of Law laid down in the decisions of the superior Courts so far it
relates to the power and jurisdiction of the High Court in entertaining such application
in an appropriate case, but he submits that such power has been and is to be very
sparingly and cautiously exercised. According to the learned Attorney-General, the
present case is, one of such cases where High Court should be hesitant to exercise its
power of granting bail to the accused petitioner who has avoided the process of the
Court below already issued against him. The learned Attorney-General further submits
that indiscriminate use of the jurisdiction of the superior Courts should be discouraged
and some sort of restraint and restrictions must be imposed to prevent the tendency of
the accused persons coming direct to the High Court avoiding the process of the
Subordinate Courts so as to obstruct the natural and usual course of administration of
justice.
7 . From the careful reading of the provision of Law relating to bail and hearing the
learned Counsel for the petitioner and the learned Attorney-General appearing for the
State, we find that there is no absolute bar in entertaining an application for bail by the
High Court Division in a fit and appropriate case, but this power is to be exercised
sparingly with due care and caution.
8 . Though maintainability of the application has not been disputed, the learned
Attorney-General vehemently opposed the prayer for bail of the petitioner stating that it
is not a fit case for exercising the jurisdiction of this court inasmuch as the petitioner is
an accused in a case where the financial interest of the general public is involved. The
learned Attorney-General also exercised his grave concern over money lending which,
according to him, has become a cancer in the society. Mr. Aminul Huq further submits
that the accused petitioner having not surrendered before the Metropolitan Magistrate
after the warrant of arrest issued against him on 28.4.92, his properties had to be
attached consequent on the Order passed by the said court on 4.5.92, after observing
all formalities as provided under Sections 87 and 88 Cr. P.C. It is further submitted that

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the accused petitioner being a fugitive offender having not surrendered before the Court
at the earliest opportunity his prayer for bail does run deserve any consideration at this
stage. The learned Attorney-General submits that Order of bail by the High Court should
not be allowed to be used as a premium to the commission of the crime nor as a shield
against all kinds of accusation only to frustrate the process of the subordinate Courts.
9 . Mr. Rokanuddin Mahmud, the learned Counsel for the petitioner, then submits that
the accused has appeared directly before this Court with a prayer for bail stating the
circumstances under which he has been compelled to come directly to the Court without
surrendering before the Chief Metropolitan Magistrate. Now the learned Counsel prays
for, either to grant him bail with a direction to him to appear before the court below or,
in the alternative, passing an Order so that he may be taken to custody and sent to the
Court of Metropolitan Magistrate with a direction to grant him bail. The said prayer is
strongly opposed by the learned Attorney-General.
1 0 . After careful examination of the facts and circumstances of the case and the
provisions of Section 496/497/498 Cr.P.C. we find it difficult and are reluctant to allow
the prayer for bail without requiring him first to surrender before me court below We
also do not consider it reasonable to send the accused to the Court of Metropolitan
Magistrate with a direction to grant hint bail as we think that subordinate court should
be left with its own discretion in dealing with the matter of bail.
11. At this stage, the learned Attorney-General submits that under such circumstances
the Only course open for the accused petitioner is to surrender himself before the jail
authority and if the accused so desires, and the Court so directs, he will be ready to
offer his good offices to arrange for his safe movement from the Supreme Court
premises to the Dhaka Central Jail with due dignity allowable to a Member of me Jatiya
Sangshad and in such case this Court may pass such Order forgiving him class I
Division in the jail custody. Mr Rokanuddin Mahmud, the learned counsel having
considered the attending circumstances, expressed petitioner's willingness to surrender
before the jail authority accepting the gracious offer of the learned Attorney-General
and we having taken note of the fact of the accused petitioner's presence in the Court,
hereby direct that accused petitioner be allowed to go to the Dhaka central jail with a
further direction that proper arrangement be made by the Law enforcing authority for
the movement of the accused petitioner to the Dhaka Central Jail with dignity and honor
available to a Member of Parliament In consideration of the status of the accused
petitioner as a Member of Jatiya Sangshad, on the prayer of the learned Counsel, it is
directed that the accused petitioner be given a class I Division as an under trial prisoner
in the jail as permissible under the Jail Code.
12. In the facts and circumstances stated above, we consider that ends of justice will
be met if the application be disposed of with the above observation and direction.
13. Accordingly, the application be disposed of.
14. Let a copy of the Order be sent to the Deputy Commissioner, Dhaka, and also to the
Superintendent, Dhaka Central Jail, for information. Let an advance copy of the Order
be sent to the Superintendent, Dhaka Central Jail for information and compliance.

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