IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Hasan Foez Siddique,C.J. Mr. Justice Obaidul Hassan

Mr. Justice M. Enayetur Rahim

CIVIL PETITION FOR LEAVE TO APPEAL NO.1738 OF 2022 (Arising out of C.M.P.No.451 of 2022)

(From the order dated the 9th day of June, 2022 passed by a Division Bench of the High Court Division in Writ Petition No.7045 of 2022)

Government of Bangladesh and  : others

-Versus- Syed  Fazle  Elahi  Obhi  and  :

others  

.      .   .   Petitioners

.      .  . Respondents

For the Petitioners  :  Mr.  A.M.  Aminuddin,  Attorney

General  along  with  Mr.  Biswajit Debnath,  Deputy  Attorney  General instructed  by  Mr.  Haridas  Paul, Advocate-on-Record

For the Respondent No.1   Mr. Zainul Abedin, Senior Advocate

with  Mr.  Murad  Reza,  Senior Advocate  with  Mr.  Ruhul  Quddus, Advocate  with  Mr.  Anik-R-  Hoque, Advocate  instructed  by  Ms.  Madhu Malati Chowdhury Barua, Advocate- on-Record.

For the Respondent Nos.2-5   :  Not represented

Date  of  Hearing  and  :  The 19th day of June, 2022 J udgment  

JUDGMENT

M. Enayetur Rahim, J: This civil petition for leave to Appeal is directed against the order dated 09.06.2022 passed by a

Division Bench of the High Court Division in Writ Petition No.7045 of 2022.

The facts, relevant for disposal of the instant leave petition are as follows:

The writ petition-respondent No.1 has filed writ petition No.7045 of 2022 before the High Court Division challenging the order dated 08.06.2022 passed by the Additional Chief Metropolitan Magistrate, Court No.4, Dhaka (writ-respondent No.6) allowing the prayer of the prosecution for remand of accused Yeasin Arafat Bhuiyan, and Sohakul Islam Bhuiyan, both are Advocates of Dhaka Bar Association in connection with Shampur Police Station Case No.11 date 07.06.2022 under sections 143/ 186/ 307/ 353/ 332/ 333/ 427 of the Penal Code and also for a direction upon the writ- respondent No.1 to transfer the case to any other organization other than the police.

The above writ petition has been filed claiming to be public interest litigation.

In the writ petition it is contended that the writ petitioner, an Advocate, observed a video footage and found that Yasin Arafat Bhuiyan and Sohakul Islam Bhuiyan, two members of Dhaka Bar Association while coming to Dhaka court for performing professional duty, they were harassed by some police personnel and they also physically tortured by them and subsequently a First Information Report was lodged against them and others by the police upon which Shampur Police Station Case No.11 dated 07.06.2022 under Section 143/186/307/353/332/333/ 427 of the Penal Code has been started.

In connection with the said case police arrested the said two persons and also wife of accused Yasin Arafat Bhuiyan and others and eventually, police forwarded them to the court of Chief Metropolitan Magistrate, Dhaka along with an application for remand. After hearing of the application the learned Additional Chief Metropolitan Magistrate, respondent No.6, allowed three days police remand by the order dated 08.06.2022.

It is further contended in the writ petition that the police remand is not a judicial order, the said persons have been detained illegally, the victim and the Investigating Agency both are from same community so no proper investigation will be held and the detenue will be prejudiced and thus a direction for judicial inquiry is needed.

The High Court Division after hearing the said writ petition on 09.06.2022 issued Rule and an ad-interim order on the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the remand of the detenues should not be declared to have been done without lawful authority and violative to the fundamental rights guaranteed to the detenues in our Constitution and guideline and observations given by our apex court in regard to remand and why the respondent No.6 should not be directed to transmit the record of Shampur Police Station Case No.11 dated 07.06.2022 before this court and/or pass such other or further order and orders as to this court may seem fit and proper.

The Rule is made returnable within 4 (four) weeks from date.

Pending hearing of the Rule, the respondent no.6 is hereby directed to certify and transmit, the record of Shampur Police Station Case No.11 dated 07.06.2022 to this court by 1.00 P.M on 12.06.2022 through the office of the Registrar, High Court Division. Supreme Court of Bangladesh by special messenger to be dealt with in accordance with law. The petitioner is directed to put in requisites for service of notices of the rule upon the respondents by a  special messenger at his own cost to be deposited to the respective office by today.

Let this matter appear in the list at 02.00 p.m. on 12.06.2022 as an ‘order’.”

Feeling  aggrieved by the  said order the  State has preferred the instant leave petition.

Mr. A.M. Aminuddin, learned Attorney General, appearing for the leave petitioners submits that the writ-petitioner has no locus standi to challenge the order of police remand, as he is not an aggrieved person. Moreso, the provision of police remand has been stipulated in the Code of Criminal Procedure.

Learned Attorney General further submits that the High Court Division erred in law in entertaining the writ petition without considering the fact that no statement has been furnished in the writ petition as to the infringement of any fundamental right of the accused persons or the petitioner and as such both the Rule issuing order as well as the ad- interim order passed by the High Court Division is illegal and without jurisdiction.

He further submits that the writ petition has been filed on the plea of greater public interest; however, the facts and circumstances of the present case do not show that any public interest is involved in the writ petition. The accused were allowed to remand which is a judicial order and said order cannot be challenged in writ jurisdiction by a 3rd party on the plea of public interest and as such the Rule issuing order and as well as the ad-interim order passed by the High Court Division is liable to be set aside.

Mr. Anik-R-Haque, learned Advocate, appearing for the writ-petition-respondent submits that the High Court Division considering the facts and circumstances of the present case rightly issued the Rule and passed the ad-interim order and since, in the meantime the accused have been granted bail by the Court below, the present  leave petition has  become infructuous.

Heard the learned Advocates for the respective parties, perused the rule issuing order and the ad-interim order passed by the High Court Division.

In the instant case, writ petitioner filed the writ petition challenging the order dated 08.06.2022 passed by the Additional Chief Metropolitan Magistrate, Dhaka respondent No.6, in allowing two accused of the case, who are the members of the Dhaka Bar Association for three days remand in connection with  Shampur Police  Station Case No.11 dated 07.06.2022 and also for holding the investigation of the case to another organization rather than the police.

Two Advocates who are accused of the above mentioned case were arrested by the police on specific allegation and thereafter, on behalf of the prosecution an application was filed for their remand and the learned Additional Chief Metropolitan Magistrate, respondent No.6 upon hearing the respective parties allowed three days remand. 

The learned Magistrate passed the said order within the scope of the law i.e. under the provision of Code of Criminal Procedure.  The order passed by a Magistrate cannot be challenged in the garb of public interest litigation under Article 102 of the Constitution of the Peoples Republic of Bangladesh, as the order passed by a Magistrate is revisable one under revisional jurisdiction before the concerned Court of Sessions. If, the accused against whom the order of remand has been made are aggrieved by the said order then they have the forum to move before the concerned Court of Sessions in its revisional jurisdiction. A 3rd person has no locus-standi to challenge the said order of remand under Article 102 of the Constitution of the People’s Republic of Bangladesh before the High Court Division. The High Court Division failed to consider this factual and legal proposition and on erroneous view issued Rule and passed ad-interim order. When a Judicial Officer passed an order within the ambit of a particular law i.e. under the Code of Criminal Procedure said order cannot be interfered with under Article 102 of the Constitution of the Peoples Republic of Bangladesh unless said order is without jurisdiction or suffers from quorum non-judice.

In the writ petition it is contended that order of remand passed by the Magistrate is not a judicial order and forum of revision is not an efficacious one. The above contentions are absolutely misconceived and not tenable in law.

In revision, the concerned court has got the power to pass any ad-interim order including stay operation of the impugned order.

It is pertinent to mention here that in the writ

petition the FIR has not been annexed or quoted. However,

application for remand has been quoted which is as follows:

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From the above, it reveals that specific allegations

have been brought against the accused persons. At this stage

there is no scope to adjudicate the falsity or truth of the

said allegations. It is true that an advocate is the integral

part of the judiciary. However, it does not mean that an

advocate is above the law and immune from any criminal

proceedings.

In view  of Article 51 of the constitution of the People’s Republic of Bangladesh, only the President of the Republic shall not be answerable in any court for anything done or omitted by him in the exercise or purported exercise of the functions of his office.

It appears from the Rule issuing order that the High Court Division having considered the ground No.6 of the writ petition issued the Rule. The said ground No.6 is as follows: “For that the in police custody and subsequent

action of the respondent No.6 clearly reflects that there will be no free and impartial investigation and the victim community will never brought to justice therefore such an incidents will deteriorate the confidents of public upon Law enforcing agencies and their constitutional right to life and protection in respect of investigation and trial enumerated under article 32 and 35(5) of the Constitutions of the Peoples Republic of Bangladesh and life will be trampled and as such the detune should brought before this Hon’ble Court without further delay and release them with any condition.” (underlines supplied)

The above ground taken in the Writ Petition is nothing but the writ petitioner has made allegation against a Judicial Officer who passed the impugned order. A Judicial Officer has every right to pass any order within the ambit of law and if, anyone is aggrieved by the same he has legal remedy before the Higher Court in appropriate forum. But, the manner the writ petitioner brought unfounded allegation against the concerned Magistrate, writ respondent No.6, is highly objectionable. During investigation of a case there is no scope to come to a definite conclusion that an accused is to be harassed and humiliated on mere apprehension and surmises.

In the facts and circumstances of the present case as well as the materials on record, we are of the view that no public importance or interest is involved in the writ petition and same has filed on misconception of law and fact. The High Court Division has proceeded with the matter in a wrong way and thus, issued the Rule and passed the ad-interim order erroneously.

Having considered as above we have no hesitation to hold that writ petition is not maintainable.   

Thus, the leave petition is disposed of.

The Rule issued in writ petition No.7045 of 2022 is hereby discharged. 

C.J.

J. J.

B/O.Imam Sarwar/ Total Wards:2,719