Present

Mr. Justice Md. Rezaul Hasan And

Mrs. Justice Fahmida Quader.

Criminal Misc. Case No. 64073 of 2023.

Md. Selim @ Leda Bashi.

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

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

Mr. Mohammad Rezaul Karim, 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 & Judgment on 13.12.2023.

Md. Rezaul Hasan, J.

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  Sessions  Case  No.  819  of  2023,  arising  out  of Moheshkhali  Police  Station  Case  No.  15  dated  22.09.2017 corresponding to G.R. No. 259 of 2017, under sections 302/34 of the Penal Code, 1860, now pending in the Court of Additional Sessions Judge, 4th Court, Cox’s Bazar, and/or such other or further order or orders passed as to this Court may seem fit and proper.

The prosecution case may briefly be stated as follows:-

One  Abdus  Sukkur,  as  informant  lodged  an  F.I.R.  on 22.09.2017 with the Moheshkhali Police Station alleging interalia

that, on 220.09.2017 was wedding ceremony of the F.I.R. named

accused No. 06, Md. Usman and the informant along with his son

went to the said ceremony. It is indispensable to reproduce the facts

of this case, verbatim, which “ kb¡ ¢hq£a pÇj¡e f§hÑL ¢he£a ¢e−hce HC ®k, B¢j B−hceL¡l£ AcÉ Bfe¡l pj£−f HC j−jÑ HS¡q¡l c¡−ul L¢l−a¢R ®k, Ef−l¡J² Bp¡j£NZ flØfl HLa¡hÜ, EnªwMm, c¡‰¡h¡S, A®~hd AÙ»d¡l£, p¿»¡p£ fËL«¢al ®m¡L quz a¡q¡l¡ ®c−nl fËQ¢ma BCe L¡e¤e ®j¡−VJ f−l¡u L−le¡z a¡q¡−cl i−u Hm¡L¡l ¢el£q ®m¡LS−el¡ j¤M M¤¢m−a p¡qp f¡u e¡z Na 20/09/2017 Cw a¡¢lM l¡¢œ−a E−õM¢a 06ew Bp¡j£l ¢hh¡q Efm−r I¢ce l¡a 08.00 O¢VL¡ qC−a a¡q¡l h¡s£−a ®j−qc£ Ae¤ù¡e Q¢m−a¢Rmz E−õ¢Ma 06 Bp¡j£ hpa h¡s£ Bj¡l h¡s£l f¡n¡f¡¢n ¢hd¡u

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The  police  investigated  into  the  case  and  has  submitted  a charge sheet No. 61 dated 11.04.2019, against (1) Md. Rahim Uddin (2) Md. Selim @ Leda Bashi (the present petitioner) (3) Aman Ullah and (4) Md. Tofayel, but did not sent up (1) Amin Sharif (2) Md. Usman @ Guriya (3) Md. Mostafa. Hence, further investigation was directed and was held by the Police Bureau of Investigation (PBI)

and they have filed supplementary charge sheet No. 61(Ka) dated 28.02.2020, against all the accused persons named in the F.I.R.

Thereafter, charge was framed against all the accused persons under section 302/34 of the Penal Code and the case is now pending for prosecution witnesses.

Learned Advocate Mr. Mohammad Rezaul Karim appeared on behalf of the accused-petitioner. He submits that, the accused Nos. 1 and 7 are absconding, while 4 other accuseds have been granted bail by the Court of Sessions and the accused No. 6 (the petitioner before us) is in jail custody. He has drawn our attention to the materials on record and submits that, in this case the accused Nos. 2, 3, 5 and 6 were enlarged on bail by the Court of Sessions and that this accused- petitioner, standing on same footing with them, is entitled to get bail. He next submits that, the accused-petitioner is rather standing on a better footing, vide the  supplementary  charge sheet No. 61(Ka) dated 28.02.2020, wherein it has been recorded that, this petitioner and accused Aman Ulla (accused No. 5) were at Moheshkhali Bazar at the time of occurrence. In other words, the accused-petitioner was not present at the place of occurrence. Besides, the accused Aman Ulla (accused No. 5), who was at Moheshkhali Bazar with him as reported  by  the  PBI,  has  been  granted  bail  by  an  order  dated 23.04.2019 along with accused No 6, Md. Usman, by the Sessions Court. He therefore, submits that, this accused is entitled to get bail

on the same footing and on the benefit of doubt, while there is no allegation  of  any  overt  act  against  this  petitioner.  He  prays  for making the Rule absolute.

Learned D.A.G. Mr. AKM Amin Uddin opposes the prayer for bail  submitting  that,  this  is  a  case  of  gruesome  murder  and  the deceased simply raised a voice to rescue his sister from the hands of the culprits on the roof of the house, where all these culprits had gathered with criminal scheme. He also submits that, if the bail is granted to this accused he will misuse the privilege and, therefore, he vehemently opposes the prayer for bail.

We  have  heard  the  learned  Advocate  for  the  accused- petitioner, the learned D.A.G. and perused the materials on record.

We find that, out of 6 F.I.R. named accuseds, 3 were let off in the 1st charge sheet No. 61 dated 11.04.2019, but all of them were booked for trial in the supplementary charge sheet No. No. 61(Ka) dated 28.02.2020, submitted by PBI.

No doubt, this type of ferocious criminals, were not at all entitled to get bail in clear violation of the conditions laid down in section 497(2) of the Code of Criminal procedure, moreover, within no time of filing the charge sheet. But, we have, to our utter surprise, notified that, by an order dated 23.04.2019, only after expiry of 12

days of submitting the 1st charge sheet No. 61, dated 11.04.2019, bail was granted to the accused Aman Ullah and Md. Usman. Thereafter, on 05.09.2022, within 20 days of his arrest by the police, the then Sessions Judge, granted bail to the accused Amin Sharif, although he was booked for trial in the supplementary charge sheet. Another accused Md. Mostafa was enlarged on bail by the trial court.

In these circumstances, we are of the view that, the fact of granting bail to the above named four accuseds by the Court of Sessions is not at all relevant in considering the bail applications by the High Court Division. Because, the Sessions Courts are not courts of co-ordinate jurisdiction, moreso, when the High Court Division finds that these bails were granted in clear violation of section  497(1)(2)  of  the  Code  of  Criminal  Procedure,  1898. However, the accused-petitioner can expect an equal treatment from all the courts so far as privilege of bail is concerned, while the benefit of doubt can be given even at the bail stage.

We are, however, inclined to enlarge the accused-petitioner to go on bail by giving him benefit of doubt, since in the supplementary charge sheet No. 16(Ka) dated 28.02.2020, it has been recorded that this accused-petitioner and another co-accused Aman Ullah were not present at the place of occurrence. The said Amanullah has been granted bail by the Sessions Judge, but petition of this petitioner was rejected, although both of them were on the same footing and were entitled to get benefit of doubt.

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. Selim @ Leda Bashi, son of Md. Shafi, be enlarged on bail subject to satisfaction of the Chief Judicial Magistrate, Cox’s Bazar.

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.