The law relating to bail is simple and clear, having no ambiguity. It offers an arrested person maximum protection and relief from arbitrary actions, upholding his or her right to enjoy life and personal liberty.
But for actor Pori Moni the same law seems to have appeared as a spiderweb to catch her due to its arbitrary use. She had to languish in custody for 27 days. She was denied bail several times and remanded by police thrice for seven days in a narcotics case.
When a person is arrested for a bailable offence, he or she is entitled to be released on bail.
In case of a non-bailable offence, the arrested person is not entitled to bail, but that does not mean that the window is shut for the person. Here comes the judicial discretion of judges in accordance with the law to offer him or her relief.
The person may be released on bail if there is no reasonable ground for believing that s/he has been guilty of an offence punishable with death.
Women, children and sick persons enjoy additional privilege as they may be released on bail even if there is reasonable ground for believing that they have been guilty of an offence punishable with death.
Sections 496 and 497 of the Code of Criminal Procedure clearly devise the guidelines for bail in bailable and non-bailable offences. The sections uphold the constitutional provision stipulated in Article 32 that deals with protection of life and liberty. The constitutional provision clearly says, "No person shall be deprived of life or personal liberty save in accordance with law."
This means even an accused cannot be denied their right to life and personal liberty. This is one of the fundamental rules for fair trial.
Pori Moni has not been granted relief in light of the law as two lower court judges refused to grant her bail exercising their discretionary powers.
The charge against Pori Moni – alleged possession of some bottles of alcohol – is non-bailable. So, she was not entitled to bail in accordance with Section 496 of the CrPC. But the offence she was accused of is punishable with a maximum jail term for five years – not the death penalty.
So, in exercise of the discretionary power, the judges could have granted her bail under Section 497 of the CrPC. Moreover, being a woman she had the additional privilege to be granted bail.
But the lower court judges responded to the law enforcement agencies' plea and placed her in police custody for grilling and denied her bail.
Even the judge kept pending her last bail prayer for 21 days without hearing.
When she was struggling to get rid of the spiderweb, the High Court intervened and the lower courts granted the bail, allowing her to walk out of jail.
The handling of Pori Moni's bail and placing her on remand repeatedly shocked the legal mind of the apex court judges, prompting them to make the significant remark: "This cannot happen in a civilised society." The High Court also observed that the lower court judges abused the powers in the Pori Moni case, according to media reports.
The High Court bench has sought explanations from the two lower court judges who placed actor Pori Moni on remand for a second and third time in the narcotics case.
In connection to Pori Moni's multiple remands in the case, the High Court also summoned the investigating officer to appear before it on 15 September with relevant documents to explain why he sought a second and third remand for Pori Moni.
The entire saga raised some important questions about the role of law enforcement agencies and the lower judiciary and shed light on the poor state of the criminal justice system.
Why were the law enforcement agencies hell-bent on keeping Pori Moni behind bars?
Their desperateness gave birth to public perception that Pori Moni has been made a victim after she sued a businessman on charge of attempted rape and murder at the Dhaka Boat Club. And a rich and powerful quarter wanted to clip her wings.
The actor has been taught enough lessons. But at what cost? For this the state paid the biggest cost. State machineries including the law enforcement agencies and the lower judiciary seem to have been used against an individual in an arbitrary manner.
The lack of independence of lower courts has always been an issue for decades. Successive governments have controlled the lower judiciary for narrow political gains. The lower judiciary still is largely controlled by the government though the constitution empowers the Supreme Court to have control over it.
But the Pori Moni saga exposed a more worrying picture: the lower judiciary is also vulnerable to being influenced by any rich and powerful quarter.
The incumbent government has gained nothing. But it had to face public criticism and outcry.
In this case, the role of the public prosecutor has also been questioned for vehement opposition to Pori Moni's bail.
An ideal prosecutor must consider himself as an agent of justice. The public prosecutor does not seem to be an advocate of the state in the sense that the prosecutor has to seek conviction at any cost. The prosecutor must be impartial, fair and truthful.
But in Pori Moni's case, the metropolitan public prosecutor Abdullah Abu has sided with the law enforcement agencies against the actor, denying her access to justice.
In this case, the law enforcement agencies, the two lower court judges and the public prosecutor seem to have ignored the fundamental principle of the rule of law that any action affecting people's liberty must be in accordance with the law.
The High Court's intervention proved that denying Pori Moni bail – that affected her right to life and personal liberty – was not done in accordance with the law.
The supremacy of the constitution has also been undermined by their actions as articles 31 and 32 of the constitution guarantee people's fundamental rights to protection of law and life and personal liberty.
The Pori Moni saga tells an unwarranted story of the rule of law in the country regardless of her fundamental rights guaranteed by the constitution.
What eminent jurist Mahmudul Islam, also a former attorney general, writes in his book "Constitutional Law of Bangladesh" is noteworthy here. "There may be a set of laws defining the rights of the people, but if the common people cannot seek the enforcement of these rights, those rights merely embellish on papers on which they are described and have no significance in real life."