Your
Advocate
Q:
I am junior lawyer practising at a local Bar. I read you column regularly.
I think, similar columns should be introduced in Bengali newspapers
also. Because Bengali newspapers are available everywhere and understandable
by all. Sir, my question as lawyer is: clients often come to us with
papers for suggestion whether anticipatory bail can be obtained from
the High Court Division. Now-a-days many people are getting anticipatory
bail from the High Court Division and there has been a tendency in the
general people to avoid local courts and risk of surrender. And many
are trying to take chance before the Higher Court. But a case in High
Court Division involves huge expenses. There was a case in which I advised
the clients not to go to High Court, as there was no chance of anticipatory
bail in that case. But after some weeks the clients came to me and said
they obtained anticipatory bail from the High Court. I felt embarrassed.
My impression was that only political VIP's are entitled to get anticipatory
bail. Sir, I want to be clear what are the real grounds on which anticipatory
bail is granted? Under what section of law? Is the Sessions Judge Competent
to grant anticipatory bail? I am looking forward to your answer. Thanking
you.
Yours Sincerely,
Md. Zakir Hossain Dewan Advocate
Your
Advocate: It is really embarrassing for a lawyer if the clients
whom he gave negative opinion get the relief through another lawyer.
The embarrassment, however, may be minimised if the advice given was
legally sound and not perverse. We as lawyers give our opinions not
guarantees. It is, therefore, not unlikely that court might hold a different
view and grant relief. It is nonetheless a bit embarrassing as against
the client but not so as against the legal community and the conscience
of the advising lawyer. What is imperative for a lawyer is to take care
that the advice given is well-grounded in law.
Now let us turn
to the specific questions you have asked. Anticipatory bail is now well
known to the general people. This is a special privilege granted to
an accused or potential accused in connection with a specific case before
being arrested or put into custody. Therefore, there is nothing wrong
for any accused still at large to expect bail with a view to avoiding
arrest and humiliation in custody. But unfortunately each and every
case is not fit for anticipatory bail as it is an extra-ordinary relief
granted in exceptional circumstances. There are basic principles enunciated
by the superior courts for granting anticipatory bail. We must go by
the legal principles while advising the clients or receiving briefs
for such bail.
The jurisprudence
of anticipatory bail is relatively of recent origin. In our country
there is no express provision of law at the moment providing for anticipatory
bail. It has developed through judicial expositions particularly of
Section 498 in relation to Section 497 of the Cr.P.C. In India a new
section (Sec. 438) is introduced in the Cr.P.C. under heading, "Direction
for grant of bail to persons apprehending arrest".
In our country
in absence of any express law the High Court Division in exercise of
its power under Section 498 of the Cr.P.C. grants anticipatory bail
in fit circumstances. Since you are a lawyer your knowledge must not
be confined to what is written in the columns of the newspapers. You
have to be exposed to the development by careful reading through the
important decisions of our Supreme Court. The jurisprudence of anticipatory
bail developed over the decades is already replete with huge literature
not admitting of even a brief discussion intended for a junior lawyer
in the limited space of this column. It will best serve your purpose
if I give you the references on anticipatory bail for reading at home
and tell you about the basic principles laid down by the Appellate Division
in a recent landmark decision given in the case of Abdul Wahab Shah
Chowdhury reported in 4 BLC(AD)195.
The basic grounds
of anticipatory bail as are provided in that decision are:
a) that the proceeding is being or has been launched against the petitioner
is being or has been taken with an ulterior motive, political or otherwise,
for harassing the accused and not for securing justice
b) that on account
of some local public commotion or other circumstances it is not possible
for the petitioner to appear before the lower court.
In the 'other circumstances'
there may be serious bodily infirmities not permitting a long travel
to court. Taking cue from this decision and many other cases of anticipatory
bail already decided we usually take another ground that there is no
prospect of bail before the lower court for extraneous circumstances.
But in all cases the basic principles of bail laid down in Section 497
shall be the guiding principle. That means, in view of the facts and
materials on records, court should have reason to believe that the petitioner
is not guilty of the offence.
For your immediate
reading I suggest the following cases: Crown vs. Khushi Muhammad, 5
DLR(FC)143;. Sadeq Ali Vs. State 18 DLR (SC) 393; Mohd. Ayub Vs. Yakub,
19 DLR(SC) 38;. Zahoor Ahmed Vs. State,PLD 1974 Lahore 256; Md. Atiqullah
Khan Masud Vs. The State & another 15 BLD (AD) 14; State Vs. MA
Malik 47 DLR (AD) 33.
As to the jurisdiction
of the Sessions Judge there is no clear view of our Supreme Court ousting
his power to grant anticipatory bail. Therefore, Sessions Judge enjoys
concurrent jurisdiction with the High Court Division in matters of granting
anticipatory bail.
Your advocate M.
Moazzam Husain is a lawyer of the Supreme Court of Bangladesh. His professional
interests include civil law, criminal law and constitutional law.
Corresponding
with the Law Desk
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