Monday, November 12, 2012

16 Jul 2012: Mobarek Hossain bail application

After dealing with the opening of the case of Nizami, the Tribunal then moved onto the case of Mobarek Hossain's bail application, carrying on from 11 July

Justice Nizamul Huq: Mr. Malum come forward. What would you like to say about the progress of the report and the proceeding? This is a bail application filed on 15-7-2012 and the investigation started on the same day.

Zeyaad Al Malum: As the investigation agency has already started their investigation, so there is no scope for bail. As Mr. Alim can’t move without wheelchair so he has been enlarged on bail. He should not be an example for the usual cases. The investigation agency should be given time to find out the facts. The matter is on the judicial notice. The war criminals are taking various sorts of advantages. Right at this moment we strongly oppose enlarging Mr. Mobarok Hossain in bail.

Justice Nizamul Huq: I would like to say, this is a Police Station Case. Investigation agency can start investigation by any application suo moto or by any other means. He is in custody, so the misc. case has been arose out of that.

Haidar Ali: This sorts of cases has been filed in Police Station then arrived at the Tribunal, there are lots of precedents like that. So, the law is not limited on that point.

Justice Nizamul Huq: He is an accused person and investigation is going on, if we found him culpable under section- 3(2) of the Act, then we will think in a different way.

He then called Advocate Shahjahan, the defence lawyer

Advocate Shajahan [Defence]: I am feeling uncertain as a lawyer of this case. Because from 4-6-2012 to 15-7-2012 already 1 month and 11 days have been passed away. So that I have come to your Lordship for a proper remedy. A man under no trial or proceeding cannot be detained in custody. The Investigation agency may investigate any time. By the custody warrant, the accused was in Brahmonbaria prison. There has not yet been any formal charge been framed. No person can be detained in this manner without any trial process.

Justice AKM Zaheer: Before this time the accused was under bail from the High Court Division.

Justice Nizamul Huq passed the following order (summary below)
This misc. case has been arisen out of an application for bail of accused Md. Mobarak Hossain of village Noyadi, Police Station- Akhaura, Dist.- Brahmonbaria, who is in prison in connection with a case of Brahmonbaria Police Station case no.- 245 of 2009. The case has been transferred to this tribunal and it is pending and records are lying under the investigation agency. It has been submitted by the Prosecution that the Investigation has been started on 15-7-2012.

The facts of the case is in short as following-

One Khodeja Begum of Dist. Brahmonbaria has filed a complaint case under the Chief Judicial Magistrate under the section- 120(B), 364, 302, and 34 of the Penal Code. The complaint petition has been sent to the Police Station to lodge FIR, afterwards Fir was lodged. The petitioner after getting the information has surrendered to the Police Station. Afterwards under misc. case no- 9722 of 2009 he was enlarged on bail for 6 months. On 24-7-2011 the accused has been directed to surrender within 3 months. On 19-12-2011 he has surrendered to the Police Station, since then he is in custody. The records of the case have been transferred to this tribunal when it was pending before the Magistrate’s Court. The whole records have been transferred to the investigation agency. Mr. Shajahan, the counsel for the petitioner has submitted that the petition of the accused is such that he could not go to the concerned magistrate or to the High Court Division; then he has come to the tribunal to get a proper remedy. He has filed a petition for bail.

We have heard Mr. Shajahan. He has submitted that the accused is a law abiding citizen if he has any bad intention in his mind then he would not have surrendered. Mr. Zeaad Al Malum has submitted that when the investigation has started, now at this moment there is no option to enlarge him on bail. And the ICT Act does not allow anyone to enlarge on bail if the Tribunal doesn’t apply its own conscience. According to him the accused is not sick or old that he could claim such types of bail. In case of Mr. Abdul Alim the Tribunal has enlarged him on bail just because for his illness and age. Although the present accused is in custody since 19-10-2011, but he can’t be enlarged on bail.

We have considered both parties. It is a fact that the investigation has started against the accused yesterday and the ICT Act does not allow anyone to enlarge on bail, but we have to see the fact behind the case. The case was filed under complaint registrar case and the Magistrate has sent the case to this Tribunal. Till today the case is pending. The investigation agency should take proper steps for the investigation. And a person should not suffer for another person’s cause.

We are inclined to enlarge him on bail with some conditions. Let the accused be enlarged on an interim bail of being miscellaneous case- 07 of 2012 for a period of 2 months that is up to 16th September, 2012. He is to be present before the Tribunal on the following date. In the meantime the investigation agency ought to submit the report.

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