Undue delay in trial is good ground for bail in non-bailable offence

Appellate Division (Criminal)
Captain (Rtd) Nurul Huda (Appellant)
Vs
State (Respondent)
Before Mr. Justice M Reza Chowdhury, CJ,
Mr. Justice Md Fazlul Karim, Mr. Justice
SJR Mudassir Hussain and Mr. Justice
Abu Sayeed Ahammed.
Date of judgement : December 1st, 2002.

Background
Mohammad Fazlul Karim J: This appeal by leave is to consider as to whether the appellant could be enlarged on bail being in custody for almost six years without any trial. As the further proceeding of the case has been stayed by the High Court Division in Criminal Revision No. 123 of 2000 on an application filed by another co-accused, and there is no chance of early disposal of the said Revision inasmuch as the trial of the case being not concluded within the specified time of 360 days from the date on which the case was received for trial, the appellant may not be kept in custody for an indefinite period as under section 339C(4) of the Code of Criminal Procedure. The appellant is entitled to be released on bail and that the High Court Division failed to consider while refusing the prayer for bail that the appellant has been suffering from enlarged prostate gland and problems in his urinary track and also suffering from mental tension and depression for being in custody for such an inordinate long time without trial.
This appeal is directed against the judgment and order dated 4-6-2001 rejecting the prayer for bail of the appellant passed by the High Court Division in Criminal Miscellaneous Case No. 1965 of 1997 arising out of Ramna PS Case No.93 dated 21-10-1996 under sections 149/448/326/307/302/34 of the Penal Code.

Deliberation
Though the respondent State has not filed any concise statement, for end of justice we have heard Mr. Abu Kowser Dabirushan, the learned Deputy Attorney-General who appeared for the State. He has submitted that the allegations of serious nature of commission of non-cognizable offence having been made out against the appellant he is not entitled to bail as the same is restricted under the provision of section 497 of the Criminal Procedure Code. The learned Deputy Attorney-General has further submitted that the provision of section 339C(4) of the Code of Criminal Procedure do not confer any right upon the accused to be enlarged on bail for non-completion of the trial within the specified time. As the trial has been held up because of the stay order from the High Court Division there is no fault of the prosecution.
The basic idea of bail is release of a person from the custody of police and to deliver him into the hand of surety, who undertakes to produce him in court whenever ordered to do so. In the case of an offence punishable with death or imprisonment for life the mere heinousness/grievousness of the offence is not by itself a circumstance sufficient to take away the discretion of a court to grant bail in deprivation of the accuseds' fundamental right to be freed. But in addition thereto, there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence.
When the court is called upon to exercise its judicial discretion it should not proceed upon any prior assumption that in all cases where an offence punishable with death or imprisonment for life is alleged, bail must, as a matter of course, be refused, nor can there be any Rule of practice on the basis of which such a discretion can be judicially exercised. Thus the discretion to enlarge on bail has to be exercised in a judicial manner with due regard to the circumstances of each case, without any tendency of unnecessarily affecting the liberty of the persons accused of criminal offences.
Section 497 of the Code of Criminal Procedure provides in a positive sense of allowing bail to any person arrested being accused of any non-bailable offence with a rider clause in a negative sense not to allow bail with qualifying words that "if there appears reasonable ground of believing that the accused has been guilty of an offence punishable with death or imprisonment for life". But the proviso to sub-section (1) of section 497 makes an exception that bail in the later case could be allowed on the ground of tenderness of age, womanhood, sickness of infirmity.
Thus under section 497 of the Code of Criminal Procedure the court would enlarge an accused of non-bailable offence unless it appears to it that there is reasonable ground of believing that the accused is guilty and even then the proviso makes certain exception in certain specified cases.
However, the Rule of general law laid down in section 497 of the Code of Criminal Procedure is not strictly binding on the High Court. The question of granting or refusing bail depends upon the particular circumstances of each case and the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail under section 498 of the Code of Criminal Procedure.
The powers to release an accused person on bail under section 498 of CrPC are virtually unlimited and the question is entirely one of discretion bearing in mind the general principle that in refusing bail it is generally necessary to see whether there are reasonable grounds for believing that the accused has committed the offence and whether he is likely to tamper with evidence during his enlargement on bail.
As regards the submission of the learned Deputy Attorney-General regarding the scope of section 497 of CrPC on an application for bail, it appears from the above discussion that the power conferred under section 498 of the CrPC on the High Court Division or the Court of Sessions are not controlled by limitation contained in section 497 CrPC. There is nothing in section 496 and 497 CrPC to show that these sections were intended to apply only to the investigating police or the court holding enquiry or trial. The wording of those sections makes it clear that it is intended to contain the entire law relating to the granting or refusal of bail to an accused which had to be applied by all courts alike.
Section 339C(4) of the Code of Criminal Procedure as amended reads as under:
(4) If a trial cannot be concluded within the specified time, the accused in the case if he is accused of a non-bailable offence, may be released on bail to the satisfaction of the court, unless for reasons to be recorded in writing, the court otherwise directs.
Interpreting of the imperative or directory nature of any enactment remains to be considered what intention is to be attributed to the same on question necessarily arising out of its enactment and on which it has remained silent. Thus when a statute requires that something shall be done in a particular manner or form expressly declaring what shall be the consequence of non-compliance the requirement is regarded as imperative or mandatory.
On perusal of the provision of section 339C(4) of the Code of Criminal Procedure it appears that if the trial has not be concluded within the specified time i.e. 360 days from the date on which the case was received for trial the accused of non-bailable offence may be released on bail to the satisfaction of the court unless the court otherwise direct in writing. Thus the section provides that for failure to complete the trial within the specified time a right is accrued to the accused of a non-bailable offence which has mandatory effect to be released on bail. The sub-section provides for the consequence of release on bail if the trial is not concluded within specified period but the words "Unless for reasons to be recorded in writing the court otherwise directs" are designed to be exercised in exceptional circumstances to deprive the right to be enlarged on bail on very cogent reasons, the reasons including the strong possibility of absconding or tempering with witnesses or hindering the prosecution of the trial etc.
In the instant case admittedly the period of completion of trial expired long back but the High Court Division in its impugned judgment has ventured to lay down certain general assumptions by way of exception to law by holding that "A speedy trial in all circumstances, however, is not a hard and fast Rule. Nowadays trial cannot be expedited due to varieties of reasons, such as, increasing number of cases, seeking of adjournments, collection of witnesses for production before court and other procedural hurdles. Delay in holding trials in all cases and circumstances is no good ground for granting bail to an accused person specially when he stands arraigned of a crime punishable with death or imprisonment for life." The said assumption we are constrained to hold, are not only contrary to the provision of law but also to the established principle of law in granting bail and the High Court Division has not assigned any reason refusing bail which is germane to the fact of the case.
On perusal of section 339C(4) we are of the view that even in a non-bailable offence accused is entitled to be enlarged on bail unless the court decides otherwise assigning reasons which are relevant to the fact of the case. In that view of the matter the High Court Division acted illegally in incorporating certain extraneous assumptions foreign to the concept of the sections 339C(4) and 497 of CrPC and the same as well could not be contemplated thereunder in the facts of the instant case in order to limit the exercise of discretion in granting bail to an accused.
Section 497 also provides for illness as a ground for enlarging on bail and the appellant has asserted that he has been suffering from enlarged prostate gland and problems in his urinary track and he is also suffering from mental tension and depression being an accused languishing in jail custody for over 6 years since 22nd October 1996 but the same has not been denied by the prosecution in this appeal.
In the instant case, the charges has been framed on 4th October 1999 on the basis of a chargesheet submitted in the case on 30th July 1997 and first information report was lodged on 21-6-1996 over an occurrence dated 14th August 1975. It may be mentioned here that it appears from the certified copy of the order sheet of the court below that on the basis of order of stay in criminal revision No. 123 of 2000 all further proceeding of the case has been stayed pursuant to an order of High Court Division dated 10-5-2000. Although the learned Deputy Attorney-General submits that there is no stay of further proceeding of the case against the appellant but since 10-5-2000 no step has been taken by the prosecution either to get the said criminal revision disposed of or to make the case of the appellant separated in order to continue with the trial of the case. Undue delay in holding trial, in the facts and circumstances, due to the prosecution's pre constination may be considered as valid ground for granting bail. Over and above, the prosecution could not give plausible reason for such inordinate delay in proceeding with the case and these circumstance can be considered as a ground for granting bail to an accused even in the instant case.
Besides inordinate delay in prosecuting the trial of the case and the provision of section 339C(4) of the Code of Criminal Procedure the fact that the appellant has been suffering from enlarged prostate gland and problems in his urinary track and from the illness for long as well attracts the provision of proviso to section 497 CrPC for consideration to enlarge the accused on bail pending trial of the case.

Decision
In view of the above, we are inclined to enlarge the accused appellant on bail till disposal of the Metropolitan Sessions Case No 8 of 1999 pending in the Court of Metropolitan Additional Sessions Judge, First Court, Dhaka. The trial court, however, may cancel the bail on any tested ground as to misuse of bail as it may deem fit and proper. The accused appellant shall, however, take permission of the trial court in the event of any compelling occasion/circumstances necessitating to leave the country.
Accordingly, the impugned order of the High Court Division is set aside and it is ordered that let the accused appellant Capt. (Retd) Nurul Huda be enlarged on bail to the satisfaction of the Deputy Commissioner, Dhaka, if not wanted in connection with any other case.
In the result this appeal is allowed.

Khandakar Mahbub Hossain, Senior Advocate instructed by Md. Aftab Hossain, Advocate on Record for the appellant. Abu Kpwser Dabirushan, deputy Attorney General, instructed by Sufia Khatun, Advocate on Record for the respondent.