HC Benches Refraining from Hearing Anticipatory Bail Petitions
Graphics: Agamir Somoy
Despite having the legal authority to do so, High Court benches are largely refraining from accepting or hearing anticipatory bail petitions. The reasons behind this reluctance remain unclear. However, the situation has created significant difficulties for litigants and raised concerns among lawyers, according to sources familiar with the matter.
Lawyers say a form of self-censorship appears to be at work among judges. They believe that the removal of some judges from their positions has made others more cautious and reluctant to act. As a result, many benches may be turning away anticipatory bail petitions. This, they argue, has created challenges not only for litigants but also for members of the legal profession.
Harassment cases are frequently filed across the country for various reasons, lawyers say. In many instances, large numbers of people are named as accused in blanket fashion. To avoid arrest in such cases, many individuals seek anticipatory bail.
According to the cause list of the High Court Division of the Supreme Court, there are currently 20 benches authorized to hear criminal matters. All of them have the jurisdiction to dispose of anticipatory bail petitions. However, since Eid-ul-Adha, only one or two benches have been accepting and hearing such petitions, and even then, only for one day or half a day each week. The remaining benches have reportedly been turning away bail applicants.
Sources said the few benches that continue to hear anticipatory bail petitions generally accept and dispose of them on Thursday afternoons.
Lawyers argue that many people are becoming entangled in harassment cases and that the High Court, as a constitutional court, is expected to provide protection in such circumstances. They warn that refusing to hear anticipatory bail petitions could create a serious crisis for justice seekers.
Senior Supreme Court Advocate Sheikh Ali Ahmed Khokon told Agamir Somoy, “No one is hearing them. Only one bench is somehow keeping the light of anticipatory bail flickering. This cannot continue. This is a country of 200 million people. There are so many citizens and so many justice seekers. This situation is unacceptable.”
Khokon, who has practiced law at the Supreme Court for many years, said that even five, seven, or ten years ago, cases were disposed of much more quickly. He recalled that some judges needed only a few minutes to understand a case after it was filed and could hear between 500 and 700 motion cases in a single day, allowing people to obtain justice promptly.
“Some people won and left with a smile; others may have lost and left disappointed. But they still received justice. Their cases were resolved,” he said. “What people want is speedy justice. That is no longer what we are seeing.”
Acknowledging the problem, Supreme Court Bar Association Secretary Advocate Mohammad Ali said the association would soon meet with the Chief Justice and submit a written request seeking a solution.
Anticipatory bail refers to conditional bail granted by a court before an individual is arrested under exceptional circumstances. Supreme Court lawyer Barrister Shihab Uddin Khan said Bangladesh's Code of Criminal Procedure does not contain any explicit provision for anticipatory bail. However, Section 498 empowers the High Court Division and Sessions Courts to grant bail to any person in any case. Anticipatory bail is generally granted under this provision in appropriate circumstances.
According to him, anticipatory bail is typically sought when an accused person fears arrest before having an opportunity to seek bail from a court, or when there is concern, that arrest could lead to harassment or damage to the individual's reputation. The High Court may consider granting interim anticipatory bail in such situations. However, anticipatory bail is generally not considered once a charge sheet has been submitted in a criminal case.
