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your Legal Advisor

Published : Thursday, 28 December, 2017 at 12:00 AM Count : 113

Dear readers, this week Your legal advisor is Ishrat Hasan, Advocate, The Supreme Court of Bangladesh. She is  Managing partner of the renowned law firm namely, 'The Law Consultant', Eastern Mansion, 67/9 Pioneer Road, Kakrail, Dhaka, which professionally deals mainly with corporate law, cyber Law, commercial law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. She can be reached at - cell: 01521515654 e-mail: [email protected]
Now-a-days many people are getting anticipatory bail from the High Court Division and there has been a tendency in the general people to avoid local courts and risk of surrender. And many also are trying to take the opportunity to the Higher Court. But, we all know cases in High Court Division involve huge expenses. Initially, my impression was that only political VIP's are entitled to get anticipatory bail. Now I see that any person can get anticipatory bail.  I want to be clear what are the real grounds on which anticipatory bail is granted? Under what section of law? Is the Sessions Judge Competent to grant anticipatory bail? I am waiting for your answer. Thanks in Advance.

Sajib Rayhan
Badda, Dhaka

Opinion :

Thanks for your query. The jurisprudence of anticipatory bail is relatively of recent origin. In our country, there is no express provision of law at the moment providing for anticipatory bail. It has developed through judicial expositions particularly of Section 498 in relation to Section 497 of the Cr.P.C. In India a new section (Sec. 438) is introduced in the Cr.P.C. under the heading, "Direction for grant of bail to persons apprehending arrest".
In our country in absence of any express law, the High Court Division in the exercise of its power under Section 498 of the Cr.P.C. grants anticipatory bail in fit circumstances. The jurisprudence of anticipatory bail developed over the decades significantly which requires vast discussion. Nonetheless I am trying to state some basic grounds for availing anticipatory bail.  
a) that the proceeding is being or has been launched against the petitioner is being or has been taken with an ulterior motive, political or otherwise, for harassing the accused and not for securing justice
b) that on account of some local public commotion or other circumstances it is not possible for the petitioner to appear before the lower court.
In the 'other circumstances,' there may be serious bodily infirmities not permitting a long travel to court. Taking the cue from the decisions of the Higher court and many other cases of anticipatory bail already decided we usually take another ground that there is no prospect of bail before the lower court for extraneous circumstances. But in all cases, the basic principles of bail laid down in Section 497 shall be the guiding principle. That means, in view of the facts and materials on records, the court should have reason to believe that the petitioner is not guilty of the offence.
As to the jurisdiction of the Sessions Judge, there is no clear view of our Supreme Court ousting his power to grant anticipatory bail. Therefore, Sessions Judge enjoys concurrent jurisdiction with the High Court Division in matters of granting anticipatory bail. I hope the above opinion meets your query. Stay fine.  

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