M. Moazzam Husain

Subject of my immediate concern is the news routinely appearing in various newspapers showing bail granted to the accused. Over the years bail reportedly granted to the professional offenders known as 'mastans', 'terrorists', 'top terrors', rapists and others wanted in series of cases are the headlines of different newspaper. The headlines, as they have appeared in the recent past in only one native daily, Prathom Alo are as follows:
1.Three talked about murders in Chittagong: Direction to investigate: two of the accused are granted bail, four more witnesses are declared hostile (28/1/2003). The contents of the news show inter alia, that the accused who were granted bail are two top terrors, namely, Sazzad Ali Khan and Five Star Jashim. Both of them are charge-sheeted and listed terrorists. The news goes further to add that the factum of speedy-bail granted to the accused arrested in non-bailable offences has created a sense of despair in the local legal community and claimed by reference to an unnamed lawyer that this will create negative impact in the society and the witnesses will suffer in terms of courage to adduce evidence in the case.

2. Police too worried at the release of top-terror Morshed in Chittagong (19/4/2003). The news goes to show, inter alia, that Morshed, already convicted for life, is wanted in twenty cases and the top terror as per list maintained by Chittagong police is released from jail by an order of the High Court. His release has created sensation in the police and swept the people of the local area with the sense of insecurity.
3. Questions after release in Mohuri murder case: Would Nasir, accused in 36 cases, never be convicted (10/2/2003)? This news piece reveals that the name of Nasir appears in 35 cases excluding the Mohuri murder case. Out of which he was granted bail in 15 cases and acquitted in 14 cases.
4. Rapist grated bail: victim splashed with acid in the court premises (30/5/2003).
A glance on the headlines will give an apparent impression that it is court which releases the criminals on bail or otherwise in its own responsibility. It can hold back that the offenders should it so wish. None of the news-pieces is indicative of the limitations of the court imposed by law. Rather the stories narrated in the body of the news relating to Morshed and Nasir are simply alarming. Therefore, with publication of every single piece of news court sustains injury in the public estimation. I don't say all the reports correctly represent the facts. Irrespective of their objectivity and correctness the headlines on the face of them are inherently provocative of doubt in judicial fair-play and virtually adds to the already shaken public-confidence on the judiciary. Courts are vested with power to grant bail in reasonable circumstances. If, by reference to the records of the case and the documents submitted therewith, it can be shown to the satisfaction of the court that there is no prima facie case against the accused or there is reason to believe that the accused is not guilty of the offence or there is fair chance of acquittal, court is rather obligated to grant bail because it is the mandate of law given in consonance with liberty of citizens.
There is hardly any scope, in the present position of law, for the court to look beyond records and withhold bail. Courts view is bound to be dispassionate and free from value judgement. The words 'top-terror', 'mastan', 'godfather' etc. are foreign to the penal clauses and not referred for cognisance or trial. Accused are forwarded to court for the particular offence or offences allegedly committed by them. If there are not sufficient materials on records to link them up with the offence matter ends so far as the court is concerned.
Instances of bail granted indiscreetly without some or other legal sanctions is rare for the obvious reason that every single order of a court is open to scrutiny by the superior court. But it can not be said that every single bail granted in the lower tire of judiciary is free from extra-judicial influence. That is a different aspect of things. The person affected by the illegal bail-order is left with remedy provided by law. If foul-play is suspected there are agencies to look into and take appropriate measures. Law is not helpless, its arms are long enough to reach the wrong-doer. The point I want to make in the peculiar perspective is that the news- headlines on the face of them are shocking to the community and tend to foster popular prejudice against the judiciary as a whole. Unless the order of bail is challenged by the Government or any private party the same may be presumed to be based on good reasons. Someway or the other the illegal order is bound to come before the superior court and scanned upon hearing both the parties. Thus there is no scope of saying or writing anything that looks as if release of terrorists either by bail or by discharge or acquittal is in the hands of the courts independent of the merit of the case. General people are not supposed to know the limitations of the courts. In our system judges or magistrates can not make public statements justifying their actions. This is possibly not desirable, as we do not want to put our judges into controversy for the greater interest of the institution. Time has changed and the people are now being glowingly exposed to media. They should not be dragged to the point of frustration by saying or writing something incomplete.
Judiciary, is the last resort of the suffering masses and thus being the most sensitive organ of the state, must stand with high scale of public confidence. No news having anti-court slant should be published in the newspapers without detail context. Moreover there should be some mechanism developed for investigation of any such news published in the newspaper. One may argue that there is law of contempt to deal with the problem. As I understand, the contempt law is not as comprehensive as to cover all nor is it meant for dealing with the kind of situation addressed here. It is not expected either that court should come forward to protect itself in all cases leaving aside the heavy work-load it is already saddled with.
'Court-Reporting' is a discipline seen to be emerging over the years in our country. Young lawyers are generally engaged for doing the job. This seems to me to be a very positive approach on the part of the newspapers. If such reporting of the lawyers and the persons experienced in court proceedings are taken it will surely go a long way in protecting the public image of our judiciary.

M. Moazzam Husain is an Advocate, Bangladesh Supreme Court.