Discretionary power of the High Court

Neither the accused has any right to claim bail nor the Court has uncontrolled power to enlarge him on bail when it is non-bailable offences. Court can exercise its discretionary power upon proper application of judicial mind and this exercise should not be arbitrary lest the ends of justice may be defeat­ed.

Police have statutory right to arrest any person who appears to them to have been involved in the commission of such offence and investigated the case without permission of the Court. The police officer act­ing under section 156(3) is not a delegate of the Magistrate and the investigation by him is not one on behalf of the Magistrate or Court. The High Court Division has no inherent power to interfere with the exercise of that power unless it is apparent that the case is pre-posterous……… (11)

The High Court Division can not direct the court concerned "to grant regular bail of the accused petitioner" after the expiry of the peri­od. If directs so, is totally against the norms of judicial ethics and will be considered as interference with the administration of criminal justice.

The High Court Division cannot dictate its subordinate courts regulating the purported orders to be passed by it after the appearance of accused. The learned Judges have left nothing for the Tribunal of the Magistrate to decide on the question of bail. The learned Judges have practically usurped the power of the courts below………… (13)

Anticipatory/Pre-arrest Bail

The accused-respondent sought anticipatory bail on the plea that he felt insecurity to surrender before the Magistrate because of the resistance of the informant. Under such circumstances, how could it direct the court to grant him regular bail? This direc­tion is uncalled for arid deprecated. High Court Division should not give any sort of direction upon the Courts below at the time of disposal of an application for anticipato­ry bail. It may either admit the accused on bail for a limited period if a case is made out or reject the prayer. If any such direction is given, the courts below are under no obligation to obey such direction and they will be at liberty to decide the bail matter independently ignoring any such observation/remark/direction. High Court Division shall not abuse its power while considering an application for anticipatory bail and follow the guidelines given by this Division.

Law declared by this Division is binding upon it and the learned Judges are oath bound to fol­low the statements of law declared by this Division. If the learned Judges do not follow their constitutional obligation, it would be taken as an aberration………….….. (14 &15) 

Conversion of the Conviction

There is no scope on the part of the High Court Division to alter the conviction of the appellant The High Court Division is expected to be careful while exercising its power on the question of conversion of the conviction of any accused. Since the state has taken no exception against the conversion of the con­viction, Appellate Division feel it not proper at this stage to interfere with his conviction. Appellate Division find no ground to com­mute the sentence…… (25)

All the eye witnesses to the occurrence categori­cally stated about only one blow given by the appel­lant, Muzibur Rahman on the head of the deceased and none said about any second attempt by him to cause further injuries or any other overt act and this fact substantiates the submission of Mr. Shahjahan that the appellant had no intention to cause death of the deceased. Charge sheet shows that PC and PR of the appellant is nil. And he has been languishing in death cell since 4-3-2001, that is, for more than 11 (eleven) years...….. (37)

Justice would best be served if the sen­tence of death awarded to the appellant by the Additional Sessions Judge and confirmed by the High Court Division is commuted to imprisonment for life…… ...........(38) 

The Constitution of Bar Association; Articles 3 & 4(5)

The Bar Association is a welfare association of the members. The Purpose and object of the Bar Association as contained in Article 3 of the Constitution of Bangladesh provides for giving facilities to its members for conducting the profession using books and journals and other facilities in connection with the profession.

It cannot interfere with the private conduct of a member. The post of Minister or Vice President held by the petitioner had nothing to do with his profession as a member of the Bar Association. The Association cannot impose any restriction towards holding of such post. The Bar Council did not at all consider that the resolution directing the petitioner to tender resignation from a post which has no connection with the profession was not binding on the petitioner and his membership cannot be ceased for non-compliance with the same…………………..(12)

Any member who having temporarily taken up other employment and is unable to practise or who has retired from profession, and is desirous of continuing his connection with the Association, may apply to the Secretary of the Association and the Executive Committee may admit him to such membership.

The provision is voluntary and any member may take advantage of that article. Now here it is mentioned that unless he applies for association membership his regular membership will cease…………………. (13) 

Manner of recording confession of an accused

Sub-section 164 (3) speaks of the manner as to how a confession of an accused is to be recorded by a magistrate and this is a mandatory provision and failure to comply with it shall make the confession invalid and unreliable. This provision of law along with provisions of Section 364 of the Code of Criminal Procedure require to be strictly observed and followed to make the confession voluntary and true in the real sense to be fit for reliance for convicting an accused on his confession……………(7)

Whether confession of an accused used against other co‑accused

It is true that confession of an accused may be used against other co‑accused in the same trial under section 30 of the Evidence Act. But that is for a limited purpose. In fact, a confession of a co‑accused is not evidence under section 3 of the Evidence Act, but it may be used if it is found to be true and voluntary as against other co‑accused not as a solitary basis for their conviction but for the purpose of lending assurance to any other evidence found against them…………….(8)