The Appellate Division has laid down a set of criteria for the High Court to dispose of anticipatory bail pleas.
One of the principles suggests that instead of relying on any generalised pretension the High Court should satisfy itself that the reasons behind an arrest are assigned credibly and with sufficient clarity.
The High Court should also specify its reasons for considering magistrates or lower court judges concerned biased as alleged by a bail-seeker, the Supreme Court said in its verdict that cancelled the High Court order granting a six-week anticipatory bail to BNP Standing Committee member Khandaker Mosharraf Hossain in a money laundering case.
On February 24, the five member Supreme Court bench led by Chief Justice Md Muzammel Hossain cancelled the bail granted by High Court bench of Justice Naima Haider and Justice Zafar Ahmed.
The full text of the verdict comprising the Supreme Court’s observations and the criteria was published recently.
The Supreme Court says the High Court should not grant bail to a person on grounds that the petitioner has a “political threshold.”
The High Court cannot also grant bail to a petitioner in a non-bailable case when the lower court concerned is “competent enough” to issue the bail, says the apex court.
“Effect of the accused’s freedom on the investigation process must not be allowed to float on obfuscation,” it says.
The HC must scrutinise the first information report (FIR) with expected diligence and should ordinarily be unwilling to grant anticipatory bail where the allegations are of heinous nature.
If the case primarily discloses an offence, the High Court should not verify any claim of the petitioner that the allegations are cooked up as such claims can only be determined through investigation.
The top court says the interest of the victim in particular and the society at large must be taken into account by the High Court for considering an anticipatory bail plea.
If the bail application satisfies these guidelines, the High Court should dispose of the application instantaneously by grating anticipatory bail, not normally exceeding four weeks, and the bail should not be in effect if charge sheet in the case is submitted, the verdict says.
The High Court is also directed to ask the lower court not to refer back to its bail order when the petitioner goes back to the lower court for further bail.
“Khandaker Mosharraf 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, rather those are in the hands of the High Court, and as such bail petitioners’ political assimilation cannot ipso facto ignite any apprehension of unfairness or impropriety,” says the judgement.
Expressing dismay, the apex court says the High Court bench did not elaborate the reason why it was satisfied that Mosharraf had feared arrest. “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,” says the verdict.
It says although the High Court has the jurisdiction to grant anticipatory bail in exceptionally deserving cases, it “in a sense usurped the discretion meant to be set apart for the lower courts.”
Although the High Court judges were constitutionally bound, they pitiably failed to follow the guidelines set by the top court in a number of cases on pre-arrest bail, the Supreme Court observes.
