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Supreme Court of Bangladesh - Criminal Miscellaneous Case No. 3875 of 2007

District- Khulna

IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)

CRIMINAL MISCELLANEOUS CASE NO. 3875 OF 2007

IN THE MATTER OF:

An application under Section 498 of the Code of Criminal Procedure for anticipatory bail
AND
IN THE MATTER OF

Moyez Uddin Sikder and others.
. . . . . . . . Accused- Petitioners.
(On Surrender)

Versus

The State, represented by the Deputy Commissioner, Khulna
. . . . . . . Opposition Party.

Mr. Kh. Mahbub Uddin Ahmed,
Dr. Kamal Hussain,
Mr. Rafiq-ul Huq,
Mr. Abdul Malek,
Mr. Mahmudul Islam,
Mr. Abdul Wadud Bhuiyan,
Mr. Md. Rawshan Ali,
Mr. A. Hasib
     . . . . .. . . . . . . . Amicus Curie.

Mr. Abdul Matin Khasru,
. . . . . . . . . . For the petitioners.

Mr. Slahuddn Ahmed,
       Addl. Attorney General with
Mr. Abdur Rouf, D.A.G.
Mr. Golam Mohammad Chowdhury, D.A.G.
Mr. Md. Bazlur Rashid, A.A.G.
. . . . . . . . . . . . For the State.

The 22nd April, 2007

Present:
Mr. Justice Nozrul Islam Chowdhury
                     And
Mr. Justice S. M. Emdadul Hoque.

Nozrul Islam Chowdhury, J:
On 29.3.2007 this application under Section 498 of the Code of Criminal Procedure with a prayer for anticipatory bail, was placed before this Court in connection with G.R. Case No. 8 of 2007 arising out of Dighalia Police Station Case No. 8 dated 31. 1. 2007 under Section 25 of the Special Powers Act, 1975 now pending in the Court of Magistrate, 1st Class and Cognizance Court 'KA' Anchal Khulna and in course of hearing of the said application Mr. Golam Mohammad Chowdhury, learned Deputy Attorney General pointed out before this Court the provision of Section 19 Gha of the Jaruri Khamata Bidhimala 2007 as amended by S.R.O. No. 30-Ain/2007 hereinafter referred to as "the said Rules" and submitted that in view of the aforesaid provision of the said Rules this Court is precluded from exercising the power under Section 497 and 498 of the Code of Criminal Procedure. The submission made by the learned dupty Attorney General having touched the very jurisdiction of this Court in exercising its power under the aforesaid provisions of Code of Criminal Procedure, we thought it proper to resolve the question first before proceeding with the case any further and in doing so we also felt it necessary to take assistance from the senior members of the Bar as Amicus Curie. Accordingly, we invited some senior members of the Bar for the purpose, to address the Court on the point of jurisdiction of this Court. Consequently the learned Counsels Mr. Khondker Mahbub Uddin Ahmad, Mr. Rafiq-ul Huq, Mr. Abdul Wadud Bhiyan, Mr. Md. Rowshan Ali and Mr. A. Hasib appeared as amicus curie, besides, Mr. Abdul Matin Khasru learned Counsel appeared in support of the application before us and addressed the Court on the point raised.

Mr. Goalam Mohammad Chowdhury, learned D.A.G. made his submission on behalf of the State on that day. Having heard the learned Counsels, as aforesaid, April 2, 2007 was scheduled for delivery of formal order. It may not be out of place to mention that upon hearing the learned Counsels, we found no difficulty, for the time being, to proceed with the business of the Court touching the Criminal Procedure Code as usual, in the meantime.

On April 2, 2007 the matter could not be posted in the list through inadvertence. Therefore, this matter was posted in the list on 3.4.2007, on which date when the same was taken up, the learned Deputy Attorney General Mr. Golam Mohammad Chowdhury along with Mr. Abdur Rouf, D.A.Gs appeared jointly before this Court and prayed for deferring the delivery of judgment on the gound that they had received specific instruction from the learned Attorney General to the effect that the law namely the provision of Rule 19Gha as referred to above, was going to be amended shortly. In view of the prayer made by the learned Deputy Attorney Generals with reference to the specific instruction from the learned Attorney General, we felt it proper to defer the delivery of judgment on this point. Accordingly, it was adjourned to April 15, 2007 for judgement and till such time this Court proceeded with its business touching the Code of Criminal Procedure as usual.

On 15.04.2007, Mr. Golam Mohammad Chowdhury, learned Deputy Attorney General, made a prayer for further adjournment as a last chance. Whereupon the matter was again adjourned till April 16, 2007. But in the meantime, the Bench was reconstituted. Therefore, this Bench felt again the necessity to adjourn the mater on 16.o4.2007 with a view to obtain an appropriate order from the learned Chief Justice, whereupon the matter was placed before the learned Chief Justice for an appropriate order and the learned Chief Justice was pleased to pass an order on 17.04.2007 directing this particular bench to hearing and dispose of the matter.

Upon receipt of the said order dated 17.04.2007 passed by the learned Chief Justice, the matter has again been posted in the list today, whereupon it has been taken up for rehearing.

Today when the matter is taken up, on our request, the learned Counsels like Dr. Kamal Hossain, Mr. Abdul Malek, Mr. Rafiq-ul Huq, Mr. Mahmudul Islam, Mr. Abdul Wadud Bhuiyan, appeared as amicus curie besides Mr. Abdul Matin Khasru for the petitioner addressed the Court. While Mr. Salahuddin Ahmed, learned Additional Attorney General, Mr. Golam Mohammad Chowdhury along with Mr. S.M. Bazlur Rashid, Asstt. Attorney General appeared on behalf of the State.

Precise point on which this Court was addressed by the learned Counsels as referred to above, is under:

"Whether the expression "Any Court or Tribunal" as available under Rule 19Gha of the said Rules namely the Jaruri Khamata Bidhimala, 2007 as amended by S.R.O. No. 30-Ain/2007, includes the High Court Division of the Supreme Court as well?"

Of the learned Counsels appeared as amicus curie on the point raised before us Mr. Khondker Mahbub Uddin Ahmad has drawn our (the Bench's) attention to Rule 19 Gha, Sub rule 1of Rule 19 Ka and Sub rule 1 of Rule 19Kha as contained in the said Rules and submits that the expression "Any Court or Tribunal" (translated from Bangla) as employed in the said Sub rule 1 of Rule 19Ka and Kha refers only to the trial Court or the tribunal as the case may be or in other words the offences contemplated under the said Rules are divided into two categories of which one is to be tried by the ordinary courts and other category has to be tried by the tribunals and the similar expression that has been used in 19Gha must bear the same meaning and cannot include this Court as was done in respect of Rule 19Ka and 19Kha. Mr. Khondker has also referred to 19Uma where the language employed by the framers of the law as under:

19E. The nature of the order of the courts or tribunals.- In the period of enforcement of the declaration of the state of emergency, it is not permitted to ask for any remedy or to dispute any injunction, except the final verdict, in any higher court or tribunal during probe, case filing or First Information Recording, investigation, pre trial procedures or during the trial under any act mentioned in this provision or provision 14 and 15.

Referring to the expression used in 19Gha Mr. Khondker submits furtherthat the expression "Any Court or Tribunal" does not include even the immediate superior courts to those trial courts or tribunal. Therefore, different expression was also used to refer the higher courts to those tribunals and trial courts. Therefore, Mr. Khondker submits further that the framers of the law did not intend to include the Supreme Court by using the expression "Any Court of Tribunal" in the Rule 19Gha of the said Rules.

Mr. Rafiq-ul Haq, the learned Counsel endorsed the view taken by Mr. Khondker and refers to the case of Secretary of State Vs. Mask and Co. Reported in A.I.R. 1940 (PC) 105 where their lordship the judicial committee of the Privy Council though dealing with a civil matter in connection with a complete ouster of Civil Courts jurisdiction, has enunciated the principles relating to exclusion of jurisdiction of the courts by way of enactment and it was held as under:

"It is settled law that the exclusion of jurisdiction of the civil courts is not to be readily inferred but that such exclusion must either by explicitly expressed or clearly implied. It is also well settled that even if the jurisdiction is so excluded the civil courts have jurisdiction to examine into cases were the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

Mr. Haq also referred to the case of Jamil Hoque and 11 others Vs. Bangladesh reported in 34 D.L.R. (AD) 125. In that case upon consideration of several decisions from different jurisdiction of the Subcontinent including All Indian Reports, it was observed as under:

"We are to remember another cardinal principle as to the interpretation of law relating to the curtailment of jurisdiction of the superior Courts. It is well settled that in a democratic country with an independent judiciary the jurisdiction of Superior Courts are not to be interpreted to have been taken away, and if it is so intended, it may be done by the appropriate legislative or constitutional authority by express words and not by implications."

Mr. Huq referring to the case of Bangladesh Agricultural University Vs. Abdul Hye Bhuiyan reported in 1982 BLD (AD) 6, submits further that even in case of ouster of jurisdiction, the Courts retain an amended scope to scrutinize as to whether the ouster of jurisdiction can be attracted by the Act done or not. It is submitted further that in the said decision the highest court has held as under:

"It is well recognised that no order is an order under the Act, if it was not passed in exercise of powers granted by the Act and was, therefore, without jurisdiction."

Mr. Rafuq-ul Huq has also pointed out before this Court, two other instances specially in respect of Martial Law Order No. 14 of 1982 whereby, pursuant to the proclamation of 24th March, 1982 the said order was promulgated curtailing jurisdiction of all the Courts including the Supreme Court to pass any order of temporary or interim injunction or stay against the Government or any Government officer acting or purporting to act in discharge of official duty etc. And in doing so expression used in the proclamation was in the following terms:

"Notwithstanding anything contained in any other law for the time being in force no court, including the Supreme Court, shall in any suit appeal or proceeding, pass any order of temporary or ad-interim injunction or stay against the Government or any Government officer ......... and any such order passed by any Court, including the Supreme Court before commencement, stand void and be of no effect."

He also referred to Indemnity Ordinance of 1975 being Ordinance No. LX of 1975 where Restriction of taking any legal or other proceedings against persons in respect of certain acts and things were brought in and the ordinance was promulgated in the language as under:

"Notwithstanding anything contained in any law, including a law relating to any defence service, for the time being in force, no suit, prosecution or other proceedings legal or disciplinary, shall lie or be taken in, before or by any court, including the Supreme Court and Court Martial, or other authority against any person, . . . . . on the morning of the 15th August 1975."

Referring to the aforesaid legislative measures Mr. Huq submits whenever the curtailment or restriction of the jurisdiction of the superior Court is intended by any law it is done by way of explicit expression and not by mere implication thus in the aforesaid two legislative measures curtailment of jurisdiction of the Supreme Court was made in a language explicitly expressed. But in the instant case in 19Gha such explicit expression is conspicuously absent. Therefore, the learned Cousel submits that it was never intended by the framers of the law to include the Supreme Court within the ambit of 19Gha of the amended provision of the Emergency Powers Rules 2007.

Dr. Kamal Hossain, learned Councel appearing before this Court also made his submission in  line with the submissions made by Mr. Kh. Mahbbuddin Ahmad adding further upon referring the difference between this Court namely, the Supreme Court and other courts pointed out that this Court is a creature of the Constitution as contemplated under Article 94 of the Constitution as enshrined in Chapter I of the Part VI thereof, while the other courts namely, the subordinate courts are dealt with in Chapter II under Article 114 of the Constitution. Therefore, the learned Counsel submits that in the events of curtailment of the jurisdiction of this courts by way of a legislative measure the enactment must contain an explicit expression to that effect and in the absence of such expression it can safely be construed that this Court was excluded from the operation of the said Rules as involved in the instant case.

Dr. Hossain submits further that definition as available under Article 152 of the Constitution in respect of the expression 'Court' is not available for the purpose of construction of 19Gha of the said Rules.

Mr. Abdul Malek, learned Counsel appearing in support of the contention made by Mr. Kh. Mahbub Uddin Ahmad and others, submitted further that under the Code of Criminal Procedure Section 497 and 498 are not the only provisions for the High Court Division to grant bail. But, it can also grant bail in exercise of Section 561A of the Code of Criminal Procedure in appropriate cases. The learned Counsel submits further that this Court is the Apex Court unlike the Subordinate judiciary. Therefore, the framers of law did not intend to include this Court within the purview of Rule 19Gha of the amended provision of the said rules as referred to above.

Mr. Abdul Wadud Bhyiyan, learned Counsel however, took a bit different view than that the learned Counsels advanced so far, before this Court. He is of the view that the amending provision thought not expressed explicitly about the curtailment of jurisdiction of this Court yet such a position can be gathered by necessary implication, as available in the legislation itself. He, however, submitted that even if it amounts to curtailment in such case too this Court has a limited jurisdiction to scrutinize the cases for the purpose of granting bail and in substantiating his submission Mr. Bhuiyan has referred to several decisions besides the provision of section 28 of the Code of Criminal Procedure before this Court. He has also referred to the provisions of Sections 497 and 498 under which the High Court Division can also grant bail in a non-bailable offence, therefore Mr. Bhuiyan sumbits that curtailment also includes the High Court Division of this Court by way of necessary implication. Mr. Bhuiyan in substantiating his submission has referred to the case of Jafar Ul Ahsan Vs. The Republic of Pakistan reported in P.L.D. 1960 (SC) 113. Wherein the Supreme Court of Pakistan in dealing with Section 10 Public Conduct (Security) Ordinance (iii of 1959) whereby jurisdiction of all courts including the Supreme Court was ousted, it was held as under:

"If a statute provides that an order made by an authority acting under it shall not be called in question in any court; all that is necessary to oust the jurisdiction of the courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be withn the grounds stated by statute, and the order made should be such as could have been made under statute. . . . . . .
. . . . . . . . .

Of course, where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."

Mr. Bhuiyan has also re-erred to the case of Bangladesh Agricultural University Vs. Abdul Hye Bhuiyan reported in B.L.D 1982 (AD) 6. In which case in dealing with the question ouster of jurisdiction of the civil courts it was held as under:

"It is well recognised that no order is an order under Act if it was not passed in exercise of powers granted by the Act and was, therefore, without jurisdiction."

Mr. Bhuiyan has also referred to the case of Kh. Ehtesham Uddin Ahmed @ Iqbal Vs. Bangladesh and others reported in 33 D.L.R. (AD) 154. Where it has been held:

"When a Martial Law Court or Tribunal has acted without jurisdiction or such Court or Tribunal is not properly constituted, that is to say, is coram non-judice, or has acted malafide, the power of the Supreme Court under Article 102 of the Constitution in an appropriate case may be excercised."

Another case being the case of Abdul Rauf and others Vs. Abdul Hamid Khan and others reported in 17 D.L.R. (SC) 515 has also ben referred to by Mr. Bhuiyan. The Supreme Court of Pakistan while dealing with curtailment of jurisdiction of civil court also held that –

"The question as to whether the act of an executive or administrative officer or a quasi-judicial or judicial tribunal is without jurisdiction, illegal and not binding on a party, being a matter of a civil nature, is always to be decided by the civil courts except to the extent to which such jurisdiction may have been taken away."

It has further been held in the same judgment in the language as under:

"No legislature when it grants power to take action or pass an order contemplates a malafide exercise of power. A malafide order is a fraud on the statute. It may be explained that malafide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purpose."

And eventually the Supreme Court of Pakistan in dealing with the same case held in the judgment:

"It is clear that the Court had jurisdiction to go into the question whether the award and decree were without jurisdiction and the order of the High Court remanding the case for a decision in accordance with law was fully justified."

Mr. Mahmudul Islam, learned Counsel appearing before this Court has endorsed almost all the submissions made by Mr. Kh. Mahbub Uddin Ahmad, Dr. Kamal Hossain and Mr. Rafiq-ul Huq and submits that the jurisdiction of not only this Court but of any Court can neither be ousted nor be curtailed by any legislation without explicitly expressed expression and in the instant case there being no explicit expression either for curtailment of jurisdiction or of ouster, the enactment in question namely 19Gha the amended provision of Emergency Power Rules does not extend to this Court namely, High Court Division of the Supreme Court.

Mr. Salahuddin Ahmed, learned Additional Attorney General appearing on behalf of the State refers to the provisions of Section 497 and 498 of the Code of Criminal Procedure where specific reference to the High Curt Division of this Court has been made and submits further that in view of norms as used in 19Gha the amending provision of the said Rules, the jurisdiction of this Court has impliedly been curtailed by way of necessary implications. The learned Additional Attorney General has, however, refrained from making any submissions as to the availability of limited scope of security and jurisdiction of this Court even after the alleged curtailment or ouster as the case may be as submitted by Mr. Abdul Wadud Bhuiyan.

Heard the learned Counsels appearing in this matter as Amicus Curie including the Additional Attorney General. Before proceeding with the question of jurisdiction of this Court we choose to quote the provisions of law which is being considered by this Court and the same is an amendment to Jaruri Khamata Bidhimala (Emergency Powers Rules) 2007 namely the said rules made by S.R.O. 30-Ain/2007 published in the Bangladesh Gazette on March 21, 2007 and the relevant part of the said Legislation reads as under:

19. Provisions With Regard to Crimes Under this Rules: Until the Emergency is in effect, trial and investigation of those crimes under this Rules and punishable not more than 5 years of rigorous imprisonment, will be carried on according to the Speedy Trial Act 2002 (Act 11 of 2002) in a way as if the crime is exactly what is embodied in article 2 (b) of the Act and will be tried under the article 9 of the Act.

19A. Duration of Case Disposal- (1) Notwithstanding whatever is stated in any law in force at present, in the period of enforcement of the declaration of the state of emergency, any case filed under the provisions of this Rules or under provisions 14 and 15 is to be settled within 45 (forty five) days from the date of commencement of trial in any court or tribunal.

(2) If the settlement of the case appears impossible due to some unavoidable reason, the court or tribunal, by notifying the reason, can settle the dispute within the next 30 (thirty) days and will inform the Supreme Court about the time extension in writing and send a copy thereof to the government.

(3) If the settlement of the case becomes impossible within the period mentioned in sub-clause (2) due to some legitimate reason, the court or tribunal, by notifying the reason, can take even 15 (fifteen) days further to settle the dispute and will inform the Supreme Court in writing about the time extension and send a copy thereof to the government.

19B. Adjournment of trial- (1) If the trial of a case filed under any provision mentioned in this Rules or provisions 14 and 15 starts in any court or tribunal in the period of enforcement of the declaration of the state of emergency, it will continue uninterruptedly until settlement, but if the court or tribunal is satisfied by the appeal from any concerned party that the trial should be adjourned for the sake of justice, it can do so for not exceeding 3 (three) days.

(2) Under the sub-clause (1), the court or tribunal will not adjourn the trial of a case in such a manner that the trial of the case stands impossible within the period stipulated under the provision 19(A).

19C. Accountability of courts, tribunals etc.- In the case of non-settlement of a dispute within the period stipulated under the provision 19(A), the accountability of the court or tribunal, the public prosecutor, the law and order enforcing agency, the commission official under provision 15, the concerned police officer or any person related to the trial will be ensured by applying the provision 15 of the Speedy Tribunal Act, 2002 (Act No. 28 of  2002) with necessary adaptation.

19D. Rules related to bail.- In the period of enforcement of the declaration of state of emergency, the accused can not appeal for bail to any court or tribunal during the inquiry, investigation and trial under any act mentioned in this provision or provisions 14 and 15, whatsoever may be stated in the provision 497 and 498 of Code of Criminal Procedure or in any other Act;

Provided that in the case where the principle accused is accompanied by  some other co-accused like his wife, offspring under age of 18, bachelor daughter, mother, mother in law or sister, the court or the tribunal, having recorded the appropriate reason, can consider bail in response to an application on behalf of the co-accused.

19E. The nature of the order of the courts or tribunals.- In the period of enforcement of the declaration of the state of emergency, it is not permitted to ask for any remedy or to dispute any injunction, except the final verdict, in any higher court or tribunal during probe, case filing or First Information Recording, investigation, pre trial procedures or during the trial under any act mentioned in this provision or provision 14 and 15.

19F. Verification of income tax certificates etc.- during investigation of corruption cases and placing it as evidence.- (1) In the period of enforcement of the declaration of state of emergency, the investigating officer, in investigating into the corruption cases, can inspect, examine
and seize income tax certificates and other tax certificates, bank account or other accounts in other financial or other types of associations or institutions for the sake of investigation, if necessary, taking permission from Anti-Corruption Commission, National Board of Revenue, ministry of home, Bangladesh Bank or related other organizations, notwithstanding  anything stated in the Income Tax Ordinance, 1984 (Ord. No. XXXVI of 1984) or any other Acts.

(2) If the certificates mentioned in sub-clause (1) are to be presented as evidence, the court or tribunal can ask for that and that are admissible as evidence.

19G. Witness-value of pictures recorded in camera etc.- Under the state of emergency, during the trial of any case under any act mentioned in this provision or provisions 14 and 15, any moving or still picture of the crime scene or related other photograph, tape, disk, information or any other related element captured by law and order forces, commission executive, or any other person so empowered under this rule is admissible as evidence given that depending upon that evidence only the court or the tribunal can penalize the accused .

19H. Witness of experts etc.- During the trial of any case under any act mentioned in this provision or provisions 14 and 15, if the court requires the witness of some forensic expert, chirographer, chirologist, ammunitions expert, bank account auditor, income tax auditor or other expert who has previously examined the things and submitted a report to the authority but now it is not feasible to place him before the court because either he is dead, or he is incapable of being an witness, or he is missing or the cost, effort and difficulty exceeds the expected level, his signed report is admissible as evidence, provided that depending upon only that evidence the court or the tribunal cannot penalize the accused .
 
19 I. Trial in absence of the witness.- (1) During the state of emergency, if the accused is mentioned as absconding in the report of investigation of any crime filed under any act mentioned in this Rules or clause 14 and 15, and if the court or the tribunal reasonably believes that the accused person is deliberately hiding to escape arrest and facing trial, the court or the tribunal will attach one notice in an easily visible place of the court building or the tribunal and one in the last residence or office of the accused specifying the time limit, not exceeding three days, and order the accused to attend the court within that time and if he fails to do so in the stipulated time, the court or the tribunal will continue trial in his absence.

(2) A notice served under the sub-clause (1) is considered to be served individually on the accused.

19J. Special provision regarding the application of the Rules.- (1) Whatever may be in other Acts or in this Rules , if the provisions of this Rules if to be applicable to the investigation, trial, appeal, bailment and such other related affairs, an approval is to be taken from the  government or other authority.

(2) The government or other authority, by a written general or special injunction, can designate a subordinate officer the power of approval under sub-clause (1).

(3) In an approval given under sub-clause (1), a statement must mention “Provisions under Emergency Power Rules, 2007 is to be applied”

(4) In giving approval under sub-clause (1) and (2), the approving officer must ascertain the impact of the crime on the people.

(5) Under the provision of clause 14—
   
 (a) Starting from the date of validation of this Rules up to March 20, 2007 and

(b) From 21 March, 2007 onward up to the gazette notification of this Rules, under Sections 161, 162, 163, 385, 386, 387, 401, 406, 408, 409, 420, 423, 467, 468, 471, 477 of Penal Code (Act XLV of 1860) and filed under other acts mentioned in clause 14
any case, within ten days of the gazette notification of this Rules, can be admissible retrospectively under the clause (1).

(6) If not approved under sub-clause (5), after the expiry of the period stipulated under the clause, no clauses of this Rules including the clause 19D regarding bailment shall be applicable in any trial under the sub-clause.
 
From a plain reading of the said rules we find that the expression which has been pointed out before us and we have been called upon to find out the meaning and intention of the framers of the law such expression reads as under: "Any Court or Tribunal" appears in 19 (Gha) in the said Rules as has been quoted above.

The same experience is available in 19Ka(1), and in 19Kha(1), therefore, let us confine ourselves to the meaning and intention of the expression as available in 19Ka, 19Kha and 19Gha.

In 19Ka the expression as available under the heading "Duration of resolving case" (Translated from Bangla to English) it is not disputed that the same provision is meant only for the trial Court or Tribunal where trial is supposed to be held.  Referring to these position available in the legislation itself the learned Counsel Mr. Khondker Mahbub Uddin, Dr. Kamal Hossain, Mr. Rafiq-ul Huq and Mr. Mahmudul Islam has pointed out the conspicuous absence of an explicit expression in the statute to include the Supreme Court under the provisions of 19Gha of the amended provision of the said Rules. In view of the absence of an explicit expression the principles enunciated in the case of Secretary of State Vs. Mask and Co. Reported in A.I.R. 1940 (PC) 105 has been attracted where the judicial committee of the Privy Council has held that "the exclusion of the jurisdiction of civil courts (here in this case the High Court Division is not to be readily inferred) but such exclusion must either be explicitly expressed or clearly implied." In the instant case we have found so far that the explicit expression as required for exclusion of jurisdiction of this court is totally absent. Of course, we shall deal with the implied exclusion later. We have in our own jurisdiction a long line of decisions following the Privy Council decision in the Mask case, Jamil Hoque and 11others Vs. Bangladesh reported in 34 D.L.R. (AD) 125 may be referred to where it has been held by our apex court that curtailment of jurisdiction can be done by an appropriate legislation b express words and not by implication. Therefore, the question of implied exclusion had been excluded by the decision reported in 34 D.L.R. case going a step further to the Privy Council decision as referred to above. The same decision of our apex court has also enunciated the principle that the "jurisdiction of the superior courts, are not to be interpreted to have been taken away and if this is so intended it may be done by the appropriate Legislative or constitutional authority by express words and not by implications." We have already noted the submissions made by Mr. Bhuiyan and by the learned Additional Attorney General whereby it is argued that this Court is also covered by the operation of Section 19Gha the amended provision of the said Rules thought not by explicit expression but by necessary implication. In answering such submission it may be pointed out that in that case what happens to the expression namely, "Any Court and Tribunal" as available in 19Ka and 19Kha where no other inference is possible other than the Court or the tribunal where the trial is supposed to take place. How then the same expression can disclose a different meaning in the same legislation in a different provision namely 19Gha thereof. An affirmative answer to that question is hardly conceivable. Therefore the question of necessary implication as argued by Mr. Bhuiyan and supported by the learned Additional Attorney General appears to have no substance particularly in view of the aforementioned position in the same legislation. Citing examples to explicit expression Mr. Huq has rightly referred to two other similar legislations. One of which is available in Martial Law Order No. 14 of 1982 promulgated on March 27, 1982 precluding all Courts from granting ad-interim injunction or stay and the language relevant for our purpose is as under:

"Notwithstanding anything contained in any other law for the time being in force, no court, including the Supreme Court, shall, in any suit, appeal or proceedings, pass any order of temporary or ad-interim injunction . . . . . . . . . . . "

Similarly in Indemnity Ordinance, 1975 being Ordinance NO. XV of 1975 similar expression which can safely be termed as an explicit expression, was also used in the same ordinance, ousting the jurisdiction of all courts from entertaining any prosecution or other proceedings, legal or disciplinary against any person including a person who is or has at any time, been subject to any law relating to any defence service in that ordinance too the expression employed is as under:

"Notwithstanding anything contained in any law, including a law relating to defence service, for the time being in force, no suit, prosecution or other proceedings, legal or disciplinary, shall lie, or be taken in, before or by any court, including the Supreme Court and Court Martial or against any person, . . . . . . "

From similar other legislation including the two we have cited above, we find that for the purpose of ouster, curtailment or restriction of jurisdiction of superior courts the framers of the law must use the explicit expression and in the absence whereof it can safely be held that this Court is not intended to be covered by the operation of that law. Referring to the legislation itself it may be pointed out further that in sub-rule 2 of rule 19Ka requires the trial Court and the Tribunal where the trial is supposed to take place should report to the Supreme Court in the event of its failure to hold the trial within the specified time or within the extended period of time. Why? As argued by the learned Counsels, the expression Supreme Court is absent in Rule 19Gha the amended provision of the said Rules and the submission made with reference to the provisions of sub-rule 2 of Rule 19Ka appears to us, of substance.

We have noticed that the non-obstinate expression available in Rule 19Gha does not include Section 561A of the Code of Criminal Procedure which provision is also available for the purpose of granting bail in an appropriate case and this Court namely, the High Court Division of the Supreme Court being the creature of the Constitution under Article 94 thereof cannot be accepted to stand at par with those subordinate courts created under Article 114 of the Constitution under a different chapter as pointed out by Dr. Hossain and referred to in the foregoing paragraphs.

The Rules of interpretation of statutes also warrants an interpretation as to the intention of the legislature to be discovered from the legislation itself. In this connection reference may be made to the case of province of East Pakistan – Vs. S.A. Khan reported in 40 D.L.R. (AD) 202.

It will therefore, be in accord, with legislative intention behind the said Rules, to point out that the same expression available in the same legislation under some rules mean and disclose a particular meaning without any sort of ambiguity, cannot, under any stretch of imagination bear a different meaning in a different Rule within the same legislation. In other words in Rule 19Ka the expression- "Any Court or Tribunal" meant the Court and the Tribunal where trial is supposed to take place and no other court. How then, as rightly pointed out by the learned Counsels, the same expression can disclose a different meaning as submitted by the learned Additional Attorney General, in 19Gha. The premises disclosed above and as available before us, unmistakably suggest the answer to the point raised, in the negative, therefore we are not in a position to accept the proposition that the same expression can bear one meaning in one part and a different meaning in the other part of the same legislation.

Of course in the process of interpretation of the statute the context must be referred to and what is that context available in the instant legislation? We are not oblivious of the position that an ongoing drive against corruption is being carried out by the interim Government and the suspects are being taken inside custody with measures for speedy trial with restrictions imposed in the process of their bail with a view to ensure their appearance in course of such trial. But at the same time we cannot conceive for a moment, that the framers of the said Rules, in their wisdom, can afford to be oblivious of the grim reality that a stream of highest magnitude, flowing from Mount Everest, cannot be blocked altogether without the risk of devastation, it can be kept open by a sluice gate not by a flood gate, though.

Therefore, the context around the instant legislation, is a clear manifestation without any obscurity, that the framers of the said Rules, deliberately refrained from using the expression to include the Supreme Court within the ambit of Rule 19Gha of the said Rules. The premises through which we have explored so far do not disclose any affirmative answer to the point raised before us.

Therefore, we are, of the opinion, that the framers of the said Rules did not intend to include the Supreme Court within the ambit of Rule 19Gha the amended provision of the said Rules, namely Jaruri Khamata Bidhimala 2007 as amended vide S.R.O. No. 30-Ain/2007 published in Bangladesh Gazette dated March 21, 2007.

In view of what has been stated above, we have no reason to hold otherwise than to come to a conclusion that the question raised by the learned Deputy Attorney General at the initial stage, as to whether this Court can entertain an application under Section 498 of the Code of Criminal Procedure or not? Our reply in an unambiguous term is in the affirmative. Therefore, this Court can entertain applications under section 498 of the Code of Criminal Procedure despite Rule 19Gha of the said Rules, even with a non-obstinate expression.

Accordingly, the question raised at the Bar is hereby resolved with the observations as above.

Nozrul Islam Chowdhury

S.M. Emdadul Hoque, J:

I agree

S. M. Emdadul Hoque


Posted on 2008-05-23



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