The Appellate Division of the Supreme Court has issued 16 directives to its High Court Division regarding granting anticipatory bail, saying that those accused in cases involving grave offences like murder and rape will not be granted anticipatory bail.
The HC can grant anticipatory bail only in exceptional cases, but not for more than eight weeks and such bail will not continue after the submission of the charge sheet of the case, the apex court said in the full text of its verdict delivered recently.
The SC said, “In the cases involving grave offences like murder, dacoity, robbery, rape etc where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims, the accused should never be enlarged on anticipatory bail.
“The anticipatory bail granted by the court should ordinary be continued not more than eight weeks and shall not continue after submission of charge sheet, and the same must not be in connection with non-bailable offence,” it said.
The SC said the HC must be extremely cautious since such bail to some extent intrudes in the sphere of investigation of crime.
A seven-member bench of the Appellate Division, headed by Chief Justice Syed Mahmud Hossain, had delivered the verdict following 31 leave to appeal petitions filed by the government challenging the HC orders granting anticipatory bail to several BNP leaders and high-profile persons, including its Secretary General Mirza Fakhrul Islam Alamgir, Moudud Ahmed, Khandker Mahbub Hossain and Mainul Hosein, in different criminal cases.
The apex court had pronounced the verdict on April 18 saying that the leave to appeal petitions were disposed of. The full text of the verdict was released recently.
In the full text of the judgment, the Appellate Division has directed the accused persons to appear before the lower courts concerned in two weeks from the date of receiving the copy of the lower court judgement and to approach the respective courts for their regular bail.
The lower courts concerned shall consider their prayers for regular bail in accordance with law and facts of the respective cases if those are so made, the SC said.
In the directives, the apex court said the anticipatory bail being an extraordinary privilege, should be granted only in exceptional cases.
“Such extraordinary judicial discretion conferred upon the higher court has to be properly exercised after proper application of mind to decide whether it is fit case for granting anticipatory bail not according to whim, caprice or fancy,” it said.
The SC said while enlarging an accused on anticipatory bail, the court must direct the applicant to cooperate with the investigating officer in every step of holding proper investigation if the same is needed.
“The court granting anticipatory bail will be at liberty to cancel the bail if a case for cancellation of bail is otherwise made out by the state or complainant.”
The Appellate Division said a condition must be imposed that the applicant shall not make any inducement or threat to the witnesses for tampering the evidence of the occurrence.
“The apprehension that the accused is in a position to influence, include or coerce witnesses to desist from furnishing relevant information to the investigating agency cannot be considered to be imaginary and the court ought to have considered that aspect seriously before granting anticipatory bail.”
The apex court further said, “A balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and through investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.”