Present

Mr. Justice Md. Rezaul Hasan And

Mrs. Justice Fahmida Quader.

Criminal Misc. Case No. 26531 of 2023. Md. Arafat Hossain.

...........Accused-petitioner. -Versus-

The State............. Opposite-party.

Mrs. Hamida Chowdhury, Advocate ………………for the petitioner. Mr. A.KM Amin Uddin, D.A.G.

Mr. Md. Shahabuddin Ahammad, A.A.G. Mr. Md. Mujibur Rahman, A.A.G

Mr. Md. Shaifour Rahman Siddique, A.A.G.          ....For the State.          

Heard on 16.01.2024 and judgment on 18.01.2024.

Md. Rezaul Hasan, J.

Let  the  supplementary  affidavit  do  form  part  of  the substantive petitioner.

On  an  application  under  section  498  of  the  Code  of

Criminal Procedure, this Rule was issued calling upon the Opposite  Party  to  show  cause  as  to  why  the  accused- petitioner should not be enlarged on bail in G.R. Case No. 515 of 2022, arising out of Banani Police Station Case No. 03 dated 02.12.2022, under sections 8/9(3) of the Santrash Birodhi Ain, 2009 (as amended 2013), now pending in the

Court of Chief Metropolitan Magistrate, Dhaka, and/or such other or further order or orders passed as to this Court may seem fit and proper.

2. The prosecution case, in brief, is that, one Md. Anowar Hossain, RAB-3, CPC-2, Mogbazar, Dhaka, as informant, lodged  an  F.I.R.  on  02.12.2022  with  the  Banani  Police Station, alleging interalia that, on 01.12.2022, at about 7.10 hours, had received a secret information that some members of  the  banded  Jamatul  Ansar  Fil  Hil  Al  Sharqiya  had assembled near TB Gate, at Mohakhali area, under Banani Police Station. Accordingly, he and other members of his team had proceeded towards the spot and, at about 9.15 a.m., they found this accused-petitioner and other members of the banded ‘Jamatul Ansar Fil Hil Al Sharqiya’ at the said spot. Then, having seen the law enforcing agency, the accused-petitioner  and other  suspects  tried to  flee  away. However, they were able to arrest Md. Arafat Hossain. The police have seized from him an old tropical green colour Redmi Note 9 Pro Android Mobile Phone and two sim- cards  No.  01770-195692  and  01859-167580  and  his passport No. A03224184, from a bag carried on his back.

The accused-petitioner was taken on remand for two days, however, nothing could be extracted from him, nor he has made any confessional statement under section 164 of the Code of Criminal Procedure. 

3. Learned Advocate Mrs. Hamida Chowdhury appeared on behalf of the accused-petitioner. Having drawn out attention to the materials on record, she first of all submits that, the accused-petitioner is innocent and nothing was recovered from him to substantiate the allegations made in the F.I.R. She next submits that, the Mobile Phone, Sim-cards have nothing to  with  the  alleged  offence.  Moreover,  she  also submits that, the petitioner was taken on remand for two days, but the prosecution could get nothing to connect him with any offence. Besides, in the police forwarding report dated  14.12.2022,  no  other  allegation  could  be  recorded against him, she also adds. She then points out that, another Bench  of  the  High  Court  Division,  by  an  order  dated 29.08.2023, had directed the police to submit the police report preferably within 2(two) months. The said period has expired long before, but the investigating officer could not submit any report. Thereafter, this matter was heard afresh

and  was  fixed  on  29.11.2023  for  judgment  before  this Bench, but on that date, on the prayer of the State, this matter was withdrawn from delivery of judgment and was fixed after vacation on 08.01.2024, for further hearing and to felicitate submitting a police report by that date. But, the police could not submit any report, as yet, by completing the investigation, and this Bench had again fixed the next date on 14.02.2024 for police report, but no report could be submitted by police, inspite of extension of time repeatedly. She  also  submits  that,  it  is  uncertain  as  to  when  the investigation will be completed and the petitioner cannot be made to suffer for no fault of the accused. She prayed for making the Rule absolute.

4. Learned D.A.G. Mr. AKM Amin Uddin opposes the prayer for bail submitting that, this accused is a member of banded Jamatul Ansar Fil Hil Al Sharqiya, who is a threat to the public  safety  and  security.  He  also  submits  that,  in  the police  forwarding  it  has  been  stated  that  important information  was  received  from  the  petitioner  and  his custody is not long. Therefore, he vehemently opposes the prayer for bail.

5. We  have  heard  the  learned  Advocate  for  the  accused- petitioner, the learned D.A.G. and perused the materials on record.
6. We  find  that,  nothing  was  recovered  from  him,  by  the police, to substantiate the allegations made in the F.I.R. The Mobile Phone, sim-card and the passport are not banned items and nothing was found to show complicity of this accused with any other offence, whatsoever, or with the act of terrorism.
7. The police could not submit any report by completing their investigation,  though  the  time  to  submit  the  report  was extended more than twice. Hence, it is uncertain as to when the  investigation  will  be  completed  and  the  petitioner cannot be made suffer for no fault of him.
8. We  are  of  the  view  that,  an  application  for  bail  in  an allegation of this kind always demands extra care, whether it  comes  for  consideration  at  the  stage  of  investigation, inquiry or trial.
9. Here,  sub-section  (2)  of  section  497  provides  clear guidelines in considering a petition for bail at the stage of investigation, inquiry or trial.

Sub-section (2) of section 497 reads as follows:-

“497(1)……………………………………………………… … (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient  grounds  for  further  inquiry  into  his  guilt,  the accused shall, pending such inquiry, be released on bail, or, at the direction of such officer of Court, on the execution by him  of  a  bond  without  sureties  for  his  appearance  as hereinafter provided” (emphasis added).

10. From the materials on record, it appears to us that, there are no reasonable grounds for believing that the petitioner has committed the offences he is accused of.
11. In view of the provisions of sub-section (2) of section 497 of the Code of Criminal Procedure, 1898, the nature or the heinousness of an offence alleged is not relevant for considering a bail petition by a court. It is, rather, the ‘reasonable  grounds  for  believing’  as  to  whether  the accused has committed a non-bailable offence, is all, that should matter with the court in deciding a petition for bail.
12. If the court does not have any reasonable ground to believe  that  the  accused-petitioner  has  committed  the offence  alleged,  then  it  should  not  withhold  the  bail, simply  because  the  case  requires  further  enquiry  or investigation.  

13. It is also relevant to record here that, the court has an onerous duty to strike a balance between the accused’s fundamental  right  of  personal  liberty,  guaranteed  by Article 32 of the Constitution, and the interest of the ‘Government’  in  maintaining  internal  security  of  the State. However, in respect of the habitual offenders or criminals with the track record of committing crimes repeatedly after going on bail, the courts should be loath in considering their bail applications.
14. Besides,  it  has  to  be  kept  in  mind  that,  the considerations for bail under section 497 are different from  those  in  pending  appeals  or  in  other  post- conviction  proceedings,  while  the  considerations  for anticipatory  bail  is  wholly  based  on  a  separate jurisprudence.
15. In the facts and circumstances of this case, the petitioner is entitled to get the benefit of doubt and is entitled to get bail on this ground alone.

16. Hence,  we  consider  this  a  fit  case  to  exercise  our discretionary jurisdiction in favour of the petitioner.
17. We find merit in this Rule and the same should be made absolute.

In the result, the Rule is made absolute.

Let the accused-petitioner Md. Arafat Hossain, son of Md. Arif Hossain, be enlarged on bail subject to satisfaction of the Chief Metropolitan Magistrate, Dhaka.

In case of any misuse, the Court below will be at liberty to cancel the bail assigning reasons thereto.

Communicate this order at once.

Fahmida Quader, J:

I agree.

Jashim:B.O.