The Appellate Division in a full verdict released last week said that an accused person should be ‘allowed to remain free unless there is good reason to keep him in confinement’.
The court said that Article 11 of the Universa1 Declaration of Human Rights stipulates: ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.’
On May 16, the short verdict of the Appellate Division was delivered by a four-judge bench chaired by Chief Justice Syed Mahmud Hossain, upholding ad-interim bail granted to former prime minister and BNP chairperson Khaleda Zia by the High Court Division in the Zia Orphanage Trust case.
The verdict says that it had been brought to the Appellate Division’s notice that even in 2007 and 2008 the High Court Division granted bails to the accused sued under the Emergency Powers Rules 2007.
The High Court Division granted bails on health grounds exercising its discretion, said the Appellate Division verdict.
It’s, therefore, clear that the High Court Division’s discretion to grant bails cannot be ‘taken away’ by any statute, said the verdict.
‘It must also be noted that where bail is granted on medical grounds, the length of period already suffered in jail is not a relevant consideration,’ said the verdict.
The full verdict, referring to Section 496 of the Code of the Criminal Procedure, said that bail was the right of an accused person during pendency of trial in a bailable case.
Even in nonbailabe offences bails might be granted to women, children or sick or infirm persons the verdict said citing Section 496 of the Code of the Criminal Procedure.
The verdict said that any appellate court might release a convict on bail during pendency of hearing his or her appeal by recording the reasons for granting bails stipulates Section 426 of Cr PC.
The Appellate Division said in the verdict that even the trial court might grant bails for limited durations to convicts jailed for less than one year to allow him or her to file appeals.
When convicts had been sentenced for more than one year also an appellate court would have to discretion to grant bails, said the verdict.
The verdict said that such discretionary powers must be exercised judiciously.
The verdict said that no court should forget while granting bails to convicts to record the reasons as Section 426 of Cr PC stipulates.
If that is done, the Appellate Division would not interfere with the discretion exercised by the High Court Division, said the verdict.
Certainly, the Appellate Division would ‘interfere where the exercise of discretion is perverse, based on wrong appreciation of the law, misreading of evidence or is whimsical,’ said the verdict.
The verdict noted that the High Court Division gave four reasons for granting limited ad-interim bail to Khaleda Zia in compliance with Section 426 of the Cr PC.
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