SC not happy with HC bench

The Appellate Division of the Supreme Court has expressed disappointment at a High Court bench for “failure to follow its guidelines” in granting anticipatory bail to BNP leader Khandaker Mosharraf Hossain in a money laundering case.
“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”, said an Appellate Division bench in its full judgment released on March 18.
It said the HC order “does not depict that legal and factual aspect stemming from the FIR 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”.
The apex court also issued some fresh guidelines for the HC in disposing of anticipatory bail petitions.
An HC bench on February 10 granted Mosharraf anticipatory bail in the case for six weeks after hearing the BNP leader's bail petition.
But a five-member bench of the Appellate Division, headed by Chief Justice Md Muzammel Hossain, scrapped the HC order on February 24, following an appeal by the Anti-Corruption Commission.
Four other judges of the bench are Justice Surendra Kumar Sinha, Justice Md Abdul Wahhab Miah, Justice Hasan Foez Siddique and Justice AHM Shamsuddin Choudhury Manik.
In two judgments delivered in 1999 and 2010, the apex court observed that though the HC's discretion in granting bail is very wide, “it must be encompassed by judicial circumspection based on established legal principles, without resorting to arbitrary consideration”.
“The Judges concerned must go through the FIR [first information report] meticulously and it must be reflected in their order that they have thoroughly scanned the facts and the allegations scripted in the FIR.
“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 civilised society will crumble.
“The judges must not be oblivious of the interest of the victims and the society as a whole, for justice connotes even handedness”.
Anticipatory bail application must be considered in the backdrop of the possibility that investigation process may be impeded in consequence of granting bail to the accused, it said.
The Appellate Division also observed that pre-arrest bail is an extraordinary remedy and anticipatory bail can be granted only in extraordinary and exceptional circumstances upon proper and intelligible exercise of discretion.
The allegations that the case is false or has been initiated out of political rivalry or the magistrates and lower court judges are controlled by the government cannot be a ground for anticipatory bail, it said.
Assumption of jurisdiction to consider anticipatory bail is an extra-ordinary one, it added.
The apex court issued the guidelines in the verdicts of State Versus Zakaria Pintu and others case (June 6, 2010), and State Versus Abdul Wahab Shah Chowdhury case (May 25, 1999).
In its February 24 verdict, the Appellate Division bench said the HC must scrutinise the facts in the FIR with “expected diligence”, and will not grant anticipatory bail “where the allegations are of heinous nature”.
If satisfied in all respects, the HC will dispose of the anticipatory bail applications instantly without issuing any rule, and will not grant such type of bail to an accused for more than four weeks, the judgment said.
“Anticipatory bails shall not survive post charge sheet stage.”
The HC judges will mention the reasons for granting anticipatory bail to an accused and “shall give reasons for their satisfaction on this unravelling point,” the apex court said.
“Political threshold of the [bail] petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application”.
If allegation of bias is aired against a particular or a group of magistrates or judges, cause of suspicion must be specifically spelt out, said the Appellate Division.
The ACC on February 6 sued Mosharraf for laundering more than Tk 9.53 crore to the UK.
The BNP leader, now in prison, amassed the money between 2001 and 2006 and deposited it with a bank account in the UK, ACC lawyer Khurshid Alam Khan told The Daily Star.