It is the general practice in our country that a person convicted under Section 302 of Penal Code, 1860 with death penalty is not considered for bail. The moot question is whether there is any legal bar upon granting bail to the death sentenced convict appellant.
In our country, Sections 496 – 502 provide general principles and jurisdiction relating to granting bail. Section 426 deals with suspension of sentence during pendency of appeal and release of the convicted appellant on bail. This Section is required to be examined particularly for the moot question raised in this article. Relevant portion of Section 426 reads out as follows –
"(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court Division in the case of any appeal by a convicted person to a Court subordinate thereto."
The words "pending any appeal by a convicted person" do not create any distinction between the convicted-appellant with death sentence and other convicted-appellants with any other sentences of any other term; therefore, there is no scope to hold that Section 426 does not apply to death sentenced convict. Appeal against death penalty is directly made to the High Court Division who enjoys ample jurisdiction to grant or refuse bail. Nowhere in any law of Bangladesh does any specific bar exist upon granting bail to the death sentenced appellant by the High Court Division, but while we go to the Court praying for it to exercise the jurisdiction, the Court often shows its reluctance. However, if we look into instances of our neighboring countries including India and Pakistan, we find positive outcomes in this regard.
Once upon a time, the practice on this issue in India was same as Bangladesh. Now there are several case references from Indian jurisdiction of granting bail to the death sentenced convict appellants. In Usha v State of U.P., 994 AWC 174, one Usha, wife of one Shaaker Singh, appealed against the judgment and order of an Additional Sessions Judge. The learned Judge convicted and sentenced the Appellants under Section 302 IPC to death. A prayer had been made in the appeal that Smt. Usha be released on bail. In this case, the High Court of Allahabad was pleased to grant bail to the death sentenced convict-appellant.
In Raja Shamshad Hussain v Gulraiz Akhtar and others, PLD 2007 the Supreme Court of Pakistan sustained the order of bail granted by the High Court to the convict-appellants sentenced under Section 302/34 of the Penal Code in exercise of jurisdiction under Section 426 of the Code of Criminal Procedure. In 2010, bail was granted to the death sentenced convict appellant in Hafiz Tanveer v The State and another, PLD 2010. Section 426 of the Code of Criminal Procedure, 1898 in Pakistan is almost similar to our Section 426.
In our country, in Mamun (Md.) v State, 70 DLR (2018), the High Court Division while interpreting Section 426 held that –
"From the wordings of the above provisions of section 426(1) of the CrPC, it is explicit that the appellate Court as well as the High Court Division is invested with the power to suspend the execution of the sentence or Order against which appeal has been preferred. It is, thus, crystal clear that the above quoted section 426(1) of the CrPC envisages 'suspension of execution of sentence;' it does not state about 'suspension of sentence' or 'suspension of Conviction'.
When a convicted person is sentenced to death and, thereafter, the said convict, upon preferring appeal, is enlarged on bail or because of pending the death reference the death of the convict is not taking place, it amounts to 'suspension of execution of the sentence'. Likewise, when a convicted person is sentenced to life imprisonment or to a fixed term imprisonment and, on appeal, instead of putting him in confinement, if he is released on bail, then the execution of the sentence remains suspended.
Similarly, on preferring appeal, if the convict-appellant does not wish to comply with the order of payment of fine or forfeiture of the property and prays to the appellate Court for its nonpayment or non-forfeiture and, accordingly, the appeal Court allows the prayer, then it is said that the execution of sentence as to payment of fine or forfeiture is suspended […]
Once a Court convicts an accused and sentences to death/imprisonment for more than one year, upon preferring the appeal, the convict cannot claim bail as of right unless the Court is satisfied that there are good grounds/reasons to enlarge the convict-appellant on bail and, thereby, suspend the sentence."
It is also apparent from the said interpretation that our Court also believes in creating no distinction between convict appellant with death penalty or other sentences of any term. As stated earlier, there is no bar provided by any statute of Bangladesh on granting bail to the death sentenced convict appellant. Indeed, no such judicial precedent has been found yet debarring or curtailing the power and jurisdiction of the High Court Division in granting bail to the death sentenced convict appellant during pendency of appeal. Appeal is a continuation of trial. If a person accused of culpable homicide under section 302 of Penal Code can be enlarged on bail on reasonable grounds and subject to the satisfaction of the Court, then the appellant during the pendency of appeal should also be considered for bail irrespective of the sentence in nature.
The writer is Advocate, Supreme Court of Bangladesh.