IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION PRESENT: Mr. Justice Md. Muzammel Hossain, Chief justice Mr. Justice Surendra Kumar Sinha Mr. Justice Md. Abdul Wahhab Miah Mr. Justice Hasan Foez Siddique Mr. Justice A. H. M. Shamsuddin Choudhury CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 66 with 81 OF 2014 (From the order dated 10.2.2014 passed by the High Court Division in Criminal Miscellaneous Case No. 4161 of 2014 in granting anticipatory bail to the accused respondent No. 1 in Ramna Model P.S. Case No. 13 dated 6.2.2014.) Durnity Daman Commission ...Petitioner. and another: -Versus- Dr. Khandakar Mosharaf ....Respondent. Hossain and another: For the Petitioner: (In Crl. P. NO. 81/14) Mr. Mahbubey Alam, Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on- Record. For the petitioner: Md. Khurshid Alam Khan, (In Crl. P. NO. 66/14) Advocate, Supreme Court, instructed by Sufia Khatun, Advocatae-on-Record For the Respondents: Mr. Mudud Ahmed with Mr. (In both the cases) A. J, Mohammad Ali, Senior Advocate, Instructed by Mr. Taufique Hossain, Advocate-on-Record. Date of hearing : 24.02.2014 JUDGMENT A.H.M. Shamsuddin Choudhury J: This Criminal Petition for Leave to Appeal under consideration has been filed by the Durnity Daman Commission (henceforth the Commission) invoking Article 103 of the Constitution. By this petition the Commission sought leave to appeal against an order, a Division Bench of the High Court Division passed on 10th February 2014 in Criminal Miscellaneous Case no. 4161 of 2014, granting anticipatory bail to one Dr. Khandaker Mosharaf Hossain. Non contentious facts as are pertinent in disposing of this petition run as below; A Director of the Commissions Rajshahi Divisional office, having a camp in Dhaka now, lodged a first Information Report (FIR) with Ramna Police Station, Dhaka, on 6th February of the instant year and the same engendered Ramna P.S Case No. 13 dated 06.02.2014, under Section 13 of the Prevention of Money Laundering Act 2002, Section 4 of the Prevention of Money Laundering Act 2009 and Section 4 of the Money Laundering Act 2012. Allegations as appear from the typed copy of the FIR, which was produced before the High Court Division with the bail application, in conspectus, reveal that having obtained approval from the Commission, the informant on inquiry unearthed that the aforenamed respondent No. 1 before us (henceforth referred to as the bail petitioner) having accumulated foreign currencies by abusing power, resorting to corruption and money laundering, deposited an amount of 804,142.13 British Pound Sterling on a fixed term with Lloyds TSB Offshore private Bank, at St. Peterport, Guernsey, Channel Island, UK, And had thereby committed offences under Section 13 of the Money Laundering Act 2002, Section 4 of the Money Laundering Act 2004 and Section 4 of the Money Laundering Act 2012. The informant Further stated that various documents divulge that during the period between 2001 and 2006, the bail petitioner a massed huge volume of properties in the UK, which includes 804,142.13 that has been poured in at the fixed Deposit Account No, 108492, maintained in the joint names of Dr. Khandaker Mosharaf Hossain and his spouse, Bilqis Aktar Hossain, with Lloyds TSB Bank at Guernsey. It has also been asserted in the FIR that according to a dossier by the Financial Investigation Unit, Bailiwick of Guernsey, the said money stands frozen. The petitioner asserted before the High Court Division that the Law enforcers raided his residence at the late hours on 7th February 2014, though he was not home at that time and that is how he came to know about the FIR. The bail petitioner, through his bail application, admitted that he does indeed have the FIR stated Pound Sterling in a Guernsey Bank. It has also been started in the bail petition that he disclosed this fact to the tax authorities in Bangladesh and paid tax on in. His explanation, however, is that after completing his doctoral research in the year 1975, he and his spouse remained in full time employment in the United Kingdom for two years and that his spouse worked full time in the UK from 1976 through 1975 and paid taxes in the UK and they invested these money in the UK share market as well as in different sectors by opening an account with Lloyds TSD Bank in Gurnesey. In advancing his arguments on entitlement to apply for anticipatory, bail, the bail petitioners contended before the High Court Division that (I) the offence cited in the FIR being a cognizable and non-boilable one, the police may arrest him at any time (2) as the service, transfer, promotion of the Magistrates and lower court/tribunal Judges are controlled by the government he apprehends that he may not be legally and properly dealt with (3) the case is a politically oriented one, Filed with male fide motive (4) prima facie, no offence has been disclosed against him (5) he apprehends torture and humiliation in the hands of the police. As the proceeding commenced before us Mr. A J Mohammad Ali, the learned Counsel proffered for the respondent that the High Court Division was quite right to grant anticipatory bail as the prosecution has been tempted by ulterior motive to harass the respondent purely on political consideration. He also echoed the respondents claim that and his spouse earned the subject money when he was pursuing his doctoral research in the U. K. Mr. Mahbubey Alam, the learned Attorney General on the other hand contended that the High Court Division utterly misdirected itself by failing to follow the guidelines the Appellate Division spelt out from time to time on anticipatory bails. He also canvassed the proposition that the F. I. R. does divulge a strong prima facie case. Anticipatory bail is obviously an extra-ordinary measure in that ordinarily an accused is required to pray bail from the lowest ladder of the Criminal Court with jurisdiction. In fact that is what the relevant legal scheme contemplates, when an accused invokes Section 498 to use the High Court Division as the first forum to seek bail, he jumps all the Criminal Courts below. While there is nothing to stop the High Court Division from enlarging an accused on anticipatory bail. the proposition that discretion to enlarge accused persons on anticipatory bail must be exercised sparingly in exceptionally deserving cases, is supported by unbroken chain of authorities of of high preponderance, not only because by assuming this power, the High Court Division in a sense destabilizes the normal pattern and usurp the discretion meant to be set apart for the lower courts, but also because it is the courts at the lowest strata that can deal with the matter with greater precision as it would normally have the relevant papers before it. Converting the High Courts Division into a Magistrates Court is least desired. For the reasons stated above this Division has laid down in a number of cases certain principles that should be followed in exercising this extraordinary jurisdiction. The High Court Division Judges are bound to adhere to them by virtue of Article 111 of the Constitution. In expressing the ratio decided in State V-Zakaria Pintu and others, 32 BLD (AD) 20 this Division kept no room for deviation from the following essentialities: 1) Assumption of jurisdiction to consider anticipatory bail is an extra-ordinary one. 2) Discretion the High Court Division in granting bail, very wide though, must he encompassed by judicial circumspection based on established legal principles, without resorting to arbitrary consideration. III) The Judges concerned must go through the F. I. R. meticulously and it must be reflected in their order that they have thoroughly scanned the facts and the allegations scripted in the F. I. R. IV) Sometimes it is imperative on the part of the Court to refuse pre-arrest-bail when allegations against the petitioners are of serious nature, because the Court must always nurture in their introspection that Justice must eventually be done by ensuring punishment for the offenders, as otherwise the fabrics of the civilized society will crumble. V) The Judges must not be oblivious of the interest of the victims and the society as a whole, for justice connotes even handedness. VI) Anticipatory bail application must be considered in the backdrop of the possibility that investigation process, in consequence of enlarging the accused on bail, may be impeded. VII) Prevailing situation should not be ignored. In State-V-Abdul Wahab Shah Chowdhury, 51 DLR (AD) 243, A. T. M. Afzal C. J, making it abundantly clear that pre-arrest bail is an extra-ordinary remedy, an exception to the general law of bail, can be granted only in extra-ordinary and exceptional circumstances upon proper and intelligible exercise of discretion. His Lordship recorded with approval the learned Attorney Generals proferment that the allegations that the case is false or that the same has been initiated out of political rivalry or the omnibus allegation that the Magistrates and lower court Judges are controlled by the government, can not, by themselves ground for anticipatory bail. Such a bail prayer can be considered, expressed his Lordships, When it appears to the Court that the purpose of the alleged proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by abusing the process of law, such as harassment, humiliation etc. of the accused which can not be permitted. Latifur Rahman J, as he then was, expressed that ordinarily when a person is wanted in connection with a non-bailable offences must be treated equally, unless of course there are special circumstances which need special consideration. These guidelines sermon that the petition must disclose explicitly and specifically what is the basis of his apprehension of not to be treated fairly. An omnibus statement that he is a political personage and the Magistrates or the lower court/tribunal Judges, as the case may be are controlled by the government (which has neither factual nor legal basis these days) is not enough. Equally well, the Judges of the High Court Division concerned must also assign reason for their satisfaction on this primordial point, which must be reckoned to be door opener. Having dissected the ratio and the ordains that emanated from high profile authorities, we are inclined to set forth the following criteria the High Court Division Shall follow wile disposing of anticipatory bail application; (a) To open the jurisdictional door they shall satisfy themselves that `reasons for apprehension have specifically, explicitly, plausibly, credibly and with sufficient clarity been assigned, instead of relying on any generalised pretension. That must be treated as the precursor. A Metaphorical avowal that the magistracy/lower judiciary is controlled by the executive should not be treated as specific because Magistrates/lower court/tribunal Judges do not longer dwell in the realm governed by the executive. If allegation of bias is aired against a particular or a group of Magistrates/ Judges, cause of suspicion must be specifically spelt out. The Judges concerned, shall give reasons for their satisfaction on this unravelling point. (b) Political threshold of the petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application. (c) Non-bailability of the offence cited in the FIR cannot be a reason for the High Court Divisions intervention for even the Magistrates/lower court/tribunal Judges are competent enough to enlarge on bail a person accused of non-bailable offences in deserving cases. (d) Effect of the accuseds freedom on the investigation process must not be allowed to float on obfuscation. (f) The High Court Division must scrutinise the test in the FIR with expected diligence and shall ordinarily be indisposed to grant anticipatory bail where the allegations are of heinous nature, keeping in mind the ordains figured at paragraph 19 of the case reported in 51 DLR (AD), supra. Claim that the allegations are cooked up shall also not be adjudged at that of point if the FIR or the complaint petition, as the case is, prima facie, discloses an offence. Whether the allegations are framed or genuine can only be determined through investigation and sifting of evidence. (g) Interest of the victim in particular and the society at large must be taken into account in weighing respective rights. (h) If satisfied in all respects, the High Court Division shall dispose of the application instantaneously by enlarging the accused on a limited bail, not normally exceeding four weeks, without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its on legal discretion without reference to the High Court divisions anticipatory bail order. Anticipatory bails shall not survive post charge sheet stage. Now in the case in hand, the bail petitioner assorted that the service, transfer, promotion of the Magistrates are regulated by the government, a claim that has no relevance with the truth, whether legally or factually. After the implementation of the Masdar Hussain Judgment, transfer, promotion of the Magistrates are in the hands of the High Court Division, and as such bail petitioners, political assimilation cannot ipso facto ignite any apprehension of unfairness or impropriety. Bail petitioners contention that the F.I.R does not prima facie disclose any offence, is simply unsustainable legally and de-fecto. The F.I.R does prima facie disclose offences of very grave nature. The bail petitioner admits that he has the stated amount of Pound sterling in the Lloyds TSB Bank in a Channel Island of the United Kingdom; The exactitude or otherwise of his claim that the money were earned legally by himself and his wife while in the U.K. during the 70s, and that the same subsequently multiplied into the present figure after that money were invested in the stock market, can only be ascertained through invest equation and evidence, not at the anticipatory bail petition stage. The High Court Divisions Order does not depict that that legal and factual aspect stemming from the F.I.R story was processed through the conduit of heedful observation, nor have they elaborated the reason for their satisfaction as to the foundation of apprehension in the impugned order. It goes without saying that the High Court Division has visibly failed to appreciate the exigency associated with the allegation and its ramification. Money laundering can wreak havoc on national economy. For the reasons figured above, we are inclined to and hereby do set aside the High Court Divisions order of granting anticipatory bail. Pitiably the High Court Division failed to follow the guidelines that emanated from this Division time and again. We are, least said, dismayed at the paradoxical order on the part of the High Court Division. The petition for leave to Appeal is disposed of with the above observations and guidelines. Certified copy 18 March 2014
Posted on: Wed, 19 Mar 2014 17:20:09 +0000
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