1
IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
Present:
Mr. Justice Md. Badruzzaman
And
Mr. Justice S M Masud Hossain Dolon
CONTEMPT RULE NO. 53467 of 2023.
(Arising out of Crl. Misc. Case No. 54114 of 2018)
Md. Mamun Chowdhury alias Mamun
...Petitioner. -Versus-
Md. Sohel Rana, Chief Judicial Magistrate, Cumilla
... Contemner.
Mr. Pronay Kanti Roy, Advocate
…For the petitioner
Mr. Shah Monjurul Haq, Senior Advocate
with
Mr. Muhammad Rafiul Islam Advocate
.. For the Contemner. Heard and Judgment on: 12.10.2023.
Md. Badruzzaman, J:
Contemner Md. Sohel Rana is an Additional District Judge of the subordinate judiciary who was serving as the Chief Judicial Magistrate, Cumilla and now is attached with the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs of the People’s Republic of Bangladesh. The Contempt Rule was issued calling upon the contemner to show cause as to why he should not be proceeded against for committing contempt of this Court and punished suitably and/or pass such other or further order or orders as to this Court may seem fit and proper.
The background for issuance of the contempt Rule is that upon an application under section 561A of the Code of Criminal Procedure initiated by the petitioner and another ( the application was registered as Criminal Miscellaneous Case No. 54114 of 2018), another Division Bench of this Court comprising of their Lordships Mr. Justice M. Enayetur Rahim (as his Lordship was then) and Mr. Justice Md. Mostafizur Rahman, vide order dated 04.11.2018 issued a Rule calling upon the State to show cause as to why the proceeding of Kotwali Police Station Case No. 87 dated 27.03.2017 corresponding to G.R No. 320 of 2017 (Kotwali) under sections 35(2)/55(7)/74 of the Bangladesh Telecommunication Control Ain, 2001 (as amended in 2010), pending in the Court of learned Chief Judicial Magistrate, Cumilla should not be quashed and at the same time stayed all further proceedings of G.R No. 320 of 2017 for a period of 06 (six) months. Thereafter, the same Bench, vide order dated 6.3.2019 extended the period of stay till disposal of the Rule. (emphasis supplied)
The orders of stay dated 04.11.2018 and 06.03.2019 were duly communicated to the Court of Chief Judicial Magistrate, Cumilla and after receiving the orders of stay, the contemner proceeded with said G.R No. 320 of 2017 and passed, amongst others, following orders:
“Av‡`k bs 29, ZvwiL 10/01/19
gvgjvi avh© ZvwiL| †gvU Avmvgx 02Rb| AvmvgxØq nvwRi| gvgjv
03/05/19 Bs ZvwiL ch©š— gnvgvb¨ nvB‡KvU© wefv‡Mi Av‡`‡k ¯ w’ MZ
Av‡Q| †`Ljvg| AvMvgx 05/05/19 Bs ZvwiL gnvgvb¨ nvB‡KvU©
wefv‡Mi cieZx© ¯ w’ MZv‡`k cÖvwß I Ab¨_vq PvR© ïbvbx|
Pxd RywWwmqvj g¨vwR‡ó«U,
Kzwgj−v|
Av‡`k bs 30, ZvwiL 25/03/19
AvR gvgjvi avh© ZvwiL bq| gnvgvb¨ nvB‡KvU© wefv‡Mi †dŠ: wewea- 54114/18 bs gvgjvi 06/03/19 Bs Zvwi‡Li Av‡`‡ki Abywjwc cvIqv
†Mj| D³ Av‡`‡k gnvgvb¨ Av`vjZ i“j wb¯úwË bv nIqv ch©š— AÎ
gvgjvi ¯ w’ MZv‡`k ewa©Z K‡i‡Qb| AvMvgx avh© ZvwiL Dchy³ Av‡`k|
Pxd RywWwmqvj g¨vwR‡ó«U,
Kzwgj−v|
Av‡`k bs 31, ZvwiL 05/05/19
gvgjv PvR© ïbvbxi Rb¨ avh©| ‡gvU Avmvgx 02Rb| AvmvgxØq nvwRi|
gnvgvb¨ nvU‡KvU© wefv‡Mi †dŠ: wewea-54114/18 Zvs gvgjvi 06/03/19 Bs
Zvwi‡Li Av‡`kg‡Z ¯ w’ MZv‡`k wel‡q Av‡`‡ki Rb¨ avh©| bw_ †ck Kiv
n‡jv| †`Ljvg AvMvgx 28/11/19 i“‡ji djvdj cÖvwß I cª‡qvRbxq Av‡`k|
Pxd RywWwmqvj g¨vwR‡ó«U, Kzwgj−v|
Av‡`k bs 40, ZvwiL 02/06/22
A`¨ gvgjv PvR© ïbvbxi Rb¨ w`b avh© Av‡Q| †gvU Avmvgx 02 Rb| AvmvgxMY Rvwg‡b wM‡q cjvZK| †`wLjvg| AvMvgx 20/10/2022 Bs PvR© ïbvbxi Rb¨|
Pxd RywWwmqvj g¨vwR‡ó«U, Kzwgj−v|
Av‡`k bs 41, ZvwiL 20/10/22
A`¨ gvgjv PvR© ïbvbxi Rb¨ w`b avh© Av‡Q| †gvU Avmvgx 02 Rb| AvmvgxØq
Rvwg‡b wM‡q cjvZK| wbhy³ weÁ †KŠïjxi gva¨‡g evZ©v gvidZ Dcw¯ Z’ Avmvgx I Zvi wbhy³ weÁ †KŠïjxi e³e¨ ïbjvg| bw_¯— cÖvmswMK KvMRv`x ch©v‡jvPbv Kijvg| †`Lv hvq †h, wµwgbvj wgm †KBm bs 54114/2018 bs gvgjvi †cÖw¶‡Z gnvgvb¨ nvB‡KvU© wefvM KZ„©K MZ 06/13/19 Bs Zvwi‡Li Av‡`‡k i“j wb¯úwË bv nIqv ch©š— mg‡qi Rb¨ gvgjvwUi Kvh©µg ¯ w’ MZ
ivLv nq| wKš‘ cieZx©‡Z Avi †Kv‡bv Av‡`k ev AÎ wel‡q †Kv‡bv Z_¨ gvgjvwU‡Z Av‡mwb ev Avmvgxc¶I mieivn K‡ibwb| †h‡nZy i“j Bmy¨
nIqvi ci B‡Zvg‡a¨ axN© mgq AwZevwnZ n‡q †M‡Q, †m‡nZy i“jwU ¯^vfvweK we‡ePbvq B‡Zvg‡a¨ wb¯úwË n‡q hvIqviB K_v| ZvQ ov †h‡nZy Avmvgxc¶B
D”P Av`vj‡Zi `vi¯’ n‡q‡Q, †m‡nZy GwU‡Z ZviI `vwqZ¡ i‡q‡Q †h, D³
wel‡q GB Av`vjZ‡K AewnZ Kiv| ZvB, AvMvgx 01/12/22 Bs cieZ©x
ZvwiL avh© Kiv n‡jv| H Zvwi‡L `v‡qiK…Z wgm gvgjv ei v“ ‡ji djvdj
Av`vjZ‡K AewnZ Kivi Rb¨ Avmvgxc¶‡K wb‡`©k †`Iqv †M‡jv|
Avgvi wb‡`©wkZg‡Z UvBcK…Z I ms‡kvwaZ|
†mv‡nj ivbv
Pxd RywWwmqvj g¨vwR‡ó«U,
Kzwgj−v|
Av‡`k bs 42, ZvwiL 01/12/22
1| gvgyb †PŠayix nvwRi| Aci Avmvgx 2| wigv Av³vi mgqcÖv_©x| Avmvgxc¶ GK `iLv¯— Øviv gvgjvwU gnvgvb¨ nvB‡Kv‡U© ¯ w’ MZ i‡q‡Q g‡g© Av`vjZ‡K AeMZ K‡ib| Dcw¯ Z’ Avmvgx gvgyb †PŠayixi e³e¨ ïbjvg| `vwLjx `iLv¯—
Øq I bw_¯— cÖvmw½K KvMRvw` ch©v‡jvPbv Kij | Abycw¯ Z’ Avmvgxi AvbxZ mg‡qi cÖv_©bv gÄyi Kiv n‡jv| Avmvgxi `vwLjx gvgjvi Z_¨k−xc ch©v‡jvPbvq †`Lv hvq †h, Zvi `v‡qi Kiv †dŠR`vix wewea gvgjvwU nvB‡Kv‡U© wePvivaxb _vK‡jI †mwU wb¯úwËi Rb¨ †h c`‡¶c †bIqv Avek¨K Zv Avmvgx wb‡”Qb bv (gvgjvwU AcÖ¯—yZ Ae¯ v’ q c‡o Av‡Q) Avmvgxi Gi“c AvPiY mg_©b‡hvM¨ bq| ZvB, AvMvgx 10/04/23 Bs ZvwiL cieZ©x w`b avh© Kiv n‡jv| H Zvwi‡Li g‡a¨ wb‡Ri `v‡qix †dŠR`vix wewea gvgjv ïbvbx A‡š— cÖ‡qvRbxq Av‡`k `vwL‡ji Rb¨ wb‡`©k ‡`Iqv †M‡jv|
Avgvi wb‡`©wkZg‡Z UvBcK…ZI ms‡kvwaZ|
†mv‡nj ivbv
Pxd RywWwmqvj g¨vwR‡ó«U, Kzwgj−v|
Av‡`k bs 43, ZvwiL 10/04/23
A`¨ gvgjv PvR© ïbvbxi Rb¨ w`b avh© Av‡Q| †gvU Avmvgx 02 Rb| Avmvgx
1| gvgyb ‡PŠayix nvwRi| Aci Avmvgx 2| wigv Av³vi mgq cÖv_©x| Dcw¯’Z Avmvgx I Zvi wbhy³ weÁ †KŠïjx Ges ivó«c‡¶i weÁ wcwcÕi e³e¨ ïbjvg|
MZ 20/10/22 Bs ZvwiL I 01/12/22 Bs Zvwi‡Li ch©‡e¶b Ges †m Abyhvqx
wb‡`©kbv cÖwZcvjb¯^i“c Avmvgx D”P Av` j‡Zi †Kv‡bv Z_¨ w`‡Z cv‡ibwb|
Av`vj‡Z Dcw¯ Z’ Avmvgx wb‡RI ¯^xKvi K‡ib †h, Zvi wbhy³ weÁ †KŠïjx G
gvgjvi ¯’wMZv‡`k wel‡q nvB‡KvU© wefv‡Mi †Kv‡bv Av‡`k ev Z_¨ Zv‡K
(Avmvgx‡K) mieivn K‡ibwb| d‡j gvgjvwUi Kvh©µg Pvjy Kivi wel‡q AÎ Av`vj‡Zi wm×vš—B wZwb †g‡b wb‡eb g‡g© Rvbvb| ZvB gvgjvwU PvR© MVb wel‡q ïbvbxi Rb¨ jIqv n‡jv| GB wel‡q Abycw¯ Z’ Avmvgx wigv Av³v‡ii
mg‡qi cÖv_©bv bvgÄyiµ‡g Zv‡K cjvZK †Nvlbv Kiv n‡jv| Dcw¯’Z Avmvgx
†gv: gvgyb †PŠayix I Zvi wbhy³ weÁ †KŠïjxi e³e¨ ïbjvg| gvgjvi GRvnvi, RãZvwjKv I Ab¨vb¨ cÖvmw½K KvMRv`x ch©v‡jvPbv Kijvg| AvmvgxM‡Yi wei“‡× AvbxZ Awf‡hvM cÖv_wgKfv‡e mZ¨ e‡j cÖZxqgvb nIqvq Ôevsjv‡`k †Uwj‡hvMv‡hvM wbqš¿b AvBb,2001Õ Gi 35(2)/55(7)/74
avivq Awf‡hvM MVb Kiv n‡jv| Dcw¯ Z’ Awfhy³ Avmvgx wb‡R‡K wb‡`v©l e‡j `vex Kivq AvMvgx 27.08.23 Bs ZvwiL wePvi|
Avgvi wb‡`©wkZg‡Z UvBcK…Z I ms‡kvwaZ|
(†mv‡nj ivbv)
Pxd RywWwmqvj g¨vwR‡ó«U, Kzwgjv|”
(emphasis supplied)
After framing of charge by the contemner against the accused petitioner in spite of pendency of the Rule with the order of stay of further proceedings of the case till disposal of the Rule, the petitioner filed supplementary affidavit (sworn in on 8.6.2023) and an application (sworn in on 6.7.2023) before this Bench stating that the contemner was desperately proceeding with the G.R case in clear violation and disobedience of this Court’s order and as such necessary action should be taken against him. After hearing, this Bench vide order dated 14.08.2023 directed the contemner to appear in person before this Court on 21.08.2023 and to explain his conduct. As per our direction, the contemner appeared in person on 21.08.2023 before us but could not give any satisfactory explanation for his conduct. He rather tried to justify his conduct and accordingly, we directed him to give written explanation within 28.08.2023 and the contemner, through the Registrar General of the Supreme Court, filed written explanation which was placed before us. For ready reference, the relevant portion of written explanation is quoted in verbatim below:
“g‡nv`q
AvbxZ Awf‡hv‡Mi cÖK…wZ Ges RãK…Z AvjvgZmg~‡ni e¶ i¶b- Y v ‡ mgm¨vi Kvi‡Y g~j gvgjvwUi wb¯úwË h_vmva¨ `ª“Z n‡q hvIqvUv b¨vq
wePvi wbwð‡Z mnvqK n‡e g‡g© Avgvi Kv‡Q g‡b n‡qwQj| ¯ w’ MZv‡`k
_vKvq g~j gvgjvi Kvh©µg AMÖmi Kivi my‡hvM wePvwiK A` vvj‡Zi bv _vK‡jI gnvgvb¨ nvB‡Kv‡U©i GLwZqvi I my‡hvM Av‡Q H e wwea gvgjvq
g~j gvgjvwU wb¯úwË K‡i †`Iqv (†Kvqvk‡g›U)| wewea gvgjvwUi wb¯úwË
`ª“Z Ki‡Z n‡j cÖwZKvi-cÖv_©x wnmv‡e Avmvgx‡K D”P Av`vj‡Z mwµq
c`‡¶c wb‡Z n‡e| i“j Bmy¨ nevi Pvi eQ‡iiI AwaK mgq ciI wb¯úwË bv
nIqvq Avk¼v n‡qwQj †h, Avmvgxc¶B i“‡ji wb¯úwË _vwg‡q ivL‡Qb|
d‡j, i“j wb¯úwËi c`‡¶c MÖnY Kivi Rb¨ Avwg Avmvgx‡K ZvwM` w`B|
GUv wbZvš—B D”P Av`vj‡Zi Kvh©c×wZ wel‡q Avgvi Ávb mxwgZ nIqvi
Kvi‡YB i‡q‡Q| G †¶‡Î Avgvi c¶cvZg~jK g‡bvfve wQj bv| Gm‡ei avivevwnKZvq Avmvgx‡K mgq I my‡hvM w`‡q Ges me©‡kl Zvwi‡L Zuvi m¤§wZ wb‡qB g~j gvgjvi Kvh©µg (PvR© MVb welqK ïbvbx) ïi“ Kwi, wKš‘y gnvgvb¨ nvB‡Kv‡U©i cÖ`Ë i“j I ¯ w’ MZv‡`k †h wVKB ÔKvh©KiÕ Av‡Q Zv Avgvi we‡ePbvq ivLv Avek¨K wQj| G fyjwU wbZvš—B Avgvi Awb”Qvq I AcÖÖwYavbekZ n‡q‡Q, D”P Av`vj‡Zi Av‡`k Agvb¨ ev B”QvK„Zfv‡e AeÁv
Kivi a„óZv Avgvi †bB| GLb Avgvi ¯úó Dcjwä n‡q‡Q †h, †Kv‡bv gvgjvq
c¶‡`i c`‡¶c ev Kg©KvÛ bq, mevi Dc‡i we‡ewPZ I Kvh©Ki _vK‡e D”P Av`vj‡Zi Av‡`k ev wb‡`©kbv| K…Z mgy`q fy‡ji Rb¨ Ag vwgnvgvb¨ Av`vj‡Zi Kv‡Q wb:kZ© ¶gv cÖv_©bv KiwQ Ges NUbvwU‡K wb‡Ri †ckvMZ Rxe‡bi Rb¨ GKwU wk¶v wnmv‡e MÖnY K‡i fwel¨‡Z AviI mZK© †_‡K KvR Kivi my‡hvM cÖ`vb Ki‡j wPiK…ZÁ _vKe g‡g© A½xKviIQ K| i w
(‡mv‡nj ivbv)
Pxd RywmwWqvj g¨vwR‡ó«U,
Kzwgj−v
ZvwiL: 28/08/2023” (emphasis supplied)
Since in his written explanation the contemner tried to justify his conduct, we were inclined to issue contempt Rule against him on 28.8.2023 and at the same time fixed the matter on 9.10.2023 for further order.
Having received the contempt Rule, the contemner submitted “written statement” (signed on 04.10.2023) in the Rule through the Registrar General of the Supreme Court of Bangladesh which was placed before us on 09.10.2023. Relevant portion of the written statement is quoted below:
“welq: Av`vjZ Aegvbbvi Kvh©aviv MÖnY I kvw¯— cÖ`vb i“j/KviY `k©v‡bvi
Reve:
m~Î: ewY©Z gvgjvq gnvgvb¨ Av`vj‡Zi cÖ`Ë MZ 28/08/2023 Zvwi‡Li Av‡`k|
gnvgvb¨ Av`vjZ
g~j gvgjvq (wR Avi-320/2017; Kzwgj−v †KvZqvjx) Avgvi KZ„©K cÖ`Ë †h Av‡`k¸wji Kvi‡Y Avgvi cÖwZ gnvgvb¨ D”P Av`vj‡Zi †¶vf I Amš w‘ ó m„wó n‡q‡Q† m¸wj †h, AbywPr I fyj wQj Zv Avwg
Avgvi wjwLZ e¨vL¨vqB (MZ 28/08/23 Zvwi‡Li) ¯^xKvi K‡i wb‡qwQ,
GLbI ¯^xKvi KiwQ| Z‡e, D³ Av‡`k¸wj †`Iqvi wcQ‡b D”P Av`vj‡Zi cÖwZ †Kv‡bv cÖKvi AeÁv ev Agvb¨Zvi wPš—v NyYv¶‡iI Avgvi g‡a¨ KvR K‡iwb| ¶z`ª n‡jI Avwg wb‡RI †h‡nZy GKRb wePviK, †m‡nZy Av`vj‡Zi Av‡`‡ki ¸i“Z¡ I kw³ Avwg Aek¨B eywS
Ges D”P Av`vjZ‡K AvMÖvn¨ ev †nq Kivi by¨bZg my‡hvMIA vgvi
†bB| †Kvb wPš—v ev weåvwš—i Kvi‡Y H Av‡`k¸wj Avgvi Øviv n‡qwQj Zv-I Avgvi wjwLZ e¨vL¨vq mij fv‡e D‡j−¨L K‡iwQ|
Avgvi wjwLZ e¨vL¨vi †Kvb e³e¨ hw` gnvgvb¨ Av`vj‡Zi Amš‘wói
KviY nq Zvn‡j †mwU wbZvš—B kãPqb ev fvlvMZ `¶Zvi NvUwZi
Kvi‡Y n‡q‡Q g‡g© MY¨ K‡i ¶gv my›`i `„wó‡Z ‡`Lvi Rb¨ cv Ö_©bv KiwQ|
Avgvi KZ„©K cÖ`Ë ZwK©Z Av‡`k¸wji g‡a¨ Kvh©Z GKwU A‡ v`kB wQj g~j gvgjvi Kvh©µg AMÖmiKvix (MZ 10/04/23 Zvwi‡Li PvR© MVb welqK), A_©vr gnvgvb¨ D”P Av`vj‡Zi ¯ w’ MZv‡`‡ki wec‡¶| Ab¨ Av‡`k¸wj wQj Avmvgxc¶‡K ZvwMZ w`‡q, G¸wj Avmvgxi Dci †h
GKwU Ab¨vh¨ Pvc m„wó K‡iwQj Zv cieZx©‡ Avgvi DcjwäZ ‡ G‡m‡Q| Z‡e Av‡`k¸wji †Kv‡bvUvB D”P Av`vj‡Zi ¯ w’ MZv‡`k‡K B”QvK„Z I m‡PZbfv‡e Agvb¨ Kivi ewn:cÖKvk wQj bv| PR v© MVb
welqK Av‡`‡k Avmvgxi Ôm¤§wZÕ wb‡q †h K_v wjwLZ Av‡Q †mwUi MÖnY‡hvM¨Zv hvPvB Ki‡Z †M‡jI djvdj Avgvi wec‡¶B hv‡e, KviY
D”P Av`vj‡Zi wm×v‡š—i Kvh©KvwiZv KviI m¤§wZ ev Am¤§wZi Dci wbf©i K‡i bv| fyj I weåvwš—i g‡a¨ c‡o cÖ`Ë Avgvi H Av‡`k Øviv
Avmvgxi †Kv‡bv cÖKvi ¶wZ ev Ab¨ †Kv‡bv c`‡¶c M„wnZ nIqvi Av‡MB Zv evwZj I Kiv n‡q‡Q (cieZ©x avh© wnmv‡e MZ 31/08/23 Zvwi‡L) gnvgvb¨ D”P Av`vj‡Zi †¶vf I Amš‘wó m„wóKvix mgy`q
fy‡ji Rb¨ Avwg †hgb Av‡MI wb:kZ© ¶gv cÖv_©bv K‡iwQ ,Avgvi wei“‡× Av`vjZ Aegvbbvi Kvh©µg MÖnY K‡i jNy cv‡c ¸i“`Û bv
‡`Iqvi Rb¨ A`¨I gnvgvb¨ D”P Av`vj‡Zi Kv‡Q GKBi“c AbyK¤úv
I gvR©bv cÖv_©bv KiwQ|
(†gv: †mv‡nj ivbv)
mshy³ Kg©KZ©v (AwZwi³ †Rjv RR)
AvBb I wePvi wefvMAvBb wePvi I msm` welqK gš¿Yvjq|
(mv‡eK Pxd RywWwmqvj g¨vwR‡óªU, Kzwgj−v)
Zvs 04/10/23”
(emphasis supplied)
The matter was taken up for hearing on 09.10.2023 and the contemner appeared in person and we gave him personal hearing. At the same time, the contemner engaged Mr. Shah Monjurul Haque, learned Advocate to conduct the Rule and we also heard him. After hearing him and considering the materials on record, when we were about to pass order, the learned Advocate for the contemner sought for an adjournment for filing affidavit and considering his prayer, we adjourned the matter fixing this Rule for hearing on 12.10.2023.
Today (12.10.2023), the contemner has filed an Affidavit tendering “unconditional, unreserved and unqualified apology” for his conduct. He also appeared in person.
Mr. Pronay Kanti Roy, learned Advocate appearing for the petitioner submits that when there was an order of stay of further proceeding of the case till disposal of the Rule from this Court, question of giving consent by the accused to proceed with the case did not arise and it is presumed that the contemner made false statement before this Court in his written explanation in respect of giving consent by the accused to proceed with the case. Learned Advocate further submits that the contemner showed highhandedness to the accused and to this Court as well as by his contemptuous activities in the name of judicial activity he undermined the dignity and prestige of the Highest Court of the Country and as such appropriate action should be taken against him.
Mr. Shah Monjurul Haq, learned Senior Advocate appearing for the contemner could not refute the contention of the learned Advocate for the petitioner but submits that since the contemner is a junior judicial officer of the subordinate judiciary,
he may be exonerated in view of the “unqualified, unreserved and unconditional” apology tendered by him. In support of his contention learned Advocate has referred to the cases of Abdul Haque vs. District Judgeship 51 DLR (AD) 15, Md. Awlad Hossain and another vs. Joynab Bibi and another 2 ADC 256 and Shamsur Rahman, Deputy Inspector General of Prisons vs. Tahera Nargis Syed and another 44 DLR (AD) 237.
Since the contemner is a judicial officer of the subordinate judiciary, we feel necessary to consult relevant law and judicial pronouncements on this subject.
Under Article 108 of the Constitution, the Supreme Court (which includes High Court Division) is a Court of record and has power to investigate and decide any contempt of itself. Moreover, under the provisions of Article 109 of the Constitution, this Court has control and superintendence over all subordinate courts and under the provisions of section 435 read with section 439 of the Code of Criminal Procedure, this Court under criminal jurisdiction can call for the records of any case from any subordinate criminal Court and can pass appropriate order.
In this case, at the instance of the petitioner and another Rule was issued earlier by another Division Bench of this Court upon an application under section 561A of the Code of Criminal Procedure [Criminal Miscellaneous Case No. 54114 of 2018]. The Hon’ble Chief Justice of Bangladesh has assigned this Bench, amongst others, to hear and dispose of all kind of criminal motions along with criminal miscellaneous cases, Rules and applications arising out of those matters. The present petitioner has filed the
instant application for drawing contempt proceeding against the contemner for violation of an interim order of stay passed by this Division in a criminal miscellaneous case. The Rule issued in the said miscellaneous case is now pending for disposal and the interim order of stay is in force. Therefore, we are of the view that this Bench has jurisdiction to deal with and dispose of this contempt matter.
Contempt of Court has not been defined either in the Constitution or any other statute, but there has been judicial interpretation thereof. A contempt proceeding is generally commenced for one’s willful disobedience to court’s order, or noncompliance and violation thereof, or for creating obstruction and interference with the course of justice, or any conduct tendering to bring the administration of law into disrespect or disregard, or scandalizing the judges, or maligning/undermining the authority of the court. Proceedings for contempt are initiated for the purpose of protecting the image and dignity of the Court itself. The purpose of proceedings in contempt of Court is to keep the stream of justice unsullied and to maintain the confidence of the public at large in the fair and impartial administration of justice by the Courts of law.
In 15 DLR (SC) 355 [ AG, West Pakistan vs. Shabir Ahmed] it has been held, “any attempt to pollute the stream of justice before it has begun to flow or to interfere with its proper and unfettered administration will amount to contempt”. Further, in the case reported in 1990 BLD 73 =41 DLR 508 [ Thera Nargis vs. Shamsur Rahman] it has been held, “in contempt matter the intention of the contemnor is not relevant. It is the effect of the contemnor’s action which is to be taken into consideration in deciding whether a contempt is committed or not”.
Before we decide upon the affidavit tendering “unconditional, unreserved and unqualified” apology what seems very sticking is that it is all too late and that the contemner tendered apology with an attempt to justify his conduct.
In 44 DLR (AD) 219 [Chairman, Kushtia Co-operative Industrial Union Ltd. vs. Md. Mujibur Rahman and others] it has been held, “in a contempt matter there cannot be both justification and apology. If an apology is to be offered in right earnest, then it must be offered unequivocally and at the earliest opportunity. A belated apology hardly shows the contrition that is the essence of the purging of a contempt. One who has the courage of his convictions may, however, take the risk and run the gauntlet of proving that he is not in contempt. That is a different matter.”
In 54 DLR 531 [Solaiman (Md) and others vs. Md. Mosharraf Hossain Khan and others] it has held, “apology with an attempt to justify the act complained of is no apology at all….. Public servants like any other citizen are not only duty bound to obey the law and the orders of the Court but it is their constitutional obligation to do so, inasmuch as the constitution enjoins upon all authorities, executive and judicial, in the Republic to act in aid of the Supreme Court.”
In Yousuf Ali Khan vs. The State, reported in PLD 1970 (SC) 350 the Pakistan Supreme Court in dealing with the question of acceptance of apology observed, “an apology in contempt cases can be mitigating circumstance only if the contemnor surrenders himself unconditionally to the judgment of the Court’. The Court further observed, “an apology after every conceivable defense has been taken, adjudicated upon and repelled and an appeal to the Federal Court has failed, can ‘hardly be considered to be genuine or received with sympathy’.” Reference was made to an earlier case decided by itself where the Court had observed, “in considering whether the apology should be accepted or not, a few facts should be taken into consideration.” These facts, as mentioned by the Court, are as follows:
In Asharam M. Jain vs. AT Gupta AIR 1983 (SC) 1151, the Indian Supreme Court while considering whether unqualified apology tendered by the contemnor should be accepted or not took the view, “to commit contempt of Court and when, after attempting to justify the conduct on various grounds, he find that the Court is reluctant to hear him, tenders a written apology, such conduct is entirely unacceptable”.
In LD Jaikawal vs. State of UP AIR 1984 (SC) 1374, the Indian Supreme Court observed, “this was a ‘paper’ apology and the expression of sorrow came from the pen, not from his heart. For it is one thing to ‘say’ sorry- it is another to ‘feel’ sorry”. The learned Judge who delivered the judgment observed that “the Court cannot subscribe to the ‘slap-say sorry and forget’ school of thought in administration of contempt jurisdiction”.
In the State vs. Nazrul Islam 37 DLR 200, the High Court Division observed “in order that a Court may accept the apology of a contemner, four elements are necessary in an affidavit offering unconditional apology. First, a sincere and candid admission of guilt, second, a convincing extension of regret and remorse, third, a solemn undertaking not to repeat the offence and fourth, an unqualified and an unconditional apology to the Court, invoking its mercy. A Court of law will not be satisfied with a mechanical offer of an unconditional apology unless the contemnor purges himself of the offence of contempt of Court in the aforesaid manner.”
By now it is settled by our Apex Court that in a proceeding under contempt there cannot be both justification and an apology. An apology usually mitigates the offence and if it is unreserved, the Court may accept it. On the other hand, an apology with an attempt to justify the act complained of is no apology at all and if the apology is qualified, hesitating and sought to be used as a device to escape the consequences of the contemner’s action, it must be rejected.
Now question arises whether the contemner willfully or deliberately violated the order of this Court or he committed contempt of this Court and whether “unconditional, unreserved and unqualified” apology tendered by him should be accepted and thereby, he should be exonerated.
Admittedly, in Criminal Miscellaneous Case No. 54114 of 2018) this Court vide order dated 04.11.2018 issued Rule and stayed all further proceedings of G.R No. 320 of 2017 pending before the Chief Judicial Magistrate, Cumilla for a period of 06 (six) months. Thereafter, this Court vide order dated 6.3.2019 extended the period of stay till disposal of the Rule. From order sheet of said case (Annexure I, J, K of the supplementary affidavit filed by the petitioner) particularly from orders dated 10.01.2019, 25.3.2019 and 20.10.2022 it appears that at the relevant time the contemner was the Presiding Officer of the Court and he himself noted and perused the stay order which is reflected in the orders passed by him.
On perusal of the ‘first written explanation’ filed by the contemner dated 28.08.2023, as quoted above, it appears that the contemner was well aware of the order of stay dated 06.03.2019 but he consecutively violated the said stay order in the manner that he fixed dates, one after another, for charge hearing and lastly vide order dated 10.04.2023 framed charge against the petitioner and declared another accused Rima Akter fugitive. He also blamed the accused for their failure in disposing of the Rule pending before this Division. In his explanation, the contemner justified his conduct in shifting the responsibility to the accused stating that the accused could not dispose of the Rule pending in the High Court Division. He also justified that he proceeded with
the case and took up for charge hearing with the consent of the
accused. Is it possible to proceed with the case with the consent of
an accused when the whole proceeding remained stayed due to
order of this Court? The comment “¯ w’ MZv‡`k _vKvq g~j gvgjvi Kvh©µg AMÖmi Kivi my‡hvM wePvwiK Av`vj‡Zi bv _vK‡jI gnvgv¨ b nvB‡Kv‡U©i GLwZqvi I my‡hvM Av‡Q H wewea gvgjvq g~j gvgjvwU wb¯úwË K‡i †I `qv” as projected in
his written explanation is more significant and such expression
indirectly put a blame on the High Court Division in that this
Division was sitting idle over the matter for a long time without
disposing of the Rule and he took the responsibility to dispose of
the case pending before him. Moreover, if the contemner realized
from his heart that he committed bona fide mistake in proceeding
with the case, he, after knowing about such mistake, could have
recalled the orders which were passed by him in violation of the
stay order and then could have filed “written explanation” seeking unconditional apology without trying to justify his orders. Moreover, in personal hearing before us, the contemner supported his written explanation to justify his conduct for which
we were bound to issue contempt Rule against him.
On perusal of “written statement” dated 04.10.2023 filed
by the contemner after issuance of the contempt Rule, it appears
that from the very beginning of his statement he himself judged
that ‘due to passing of his orders we might have personally been
annoyed and dissatisfied with him’. In one hand, he admitted that
‘order of framing charge dated 10.4.2023 was in violation of the
stay order and other orders created undue pressure upon the
accused’ but on the other hand, he justified that ‘those orders did
not prejudice the accused and were not passed by him willfully’.
He also stated that he recalled the charge framing order on 31.08.2023 before the accused had been prejudiced. Can a judicial
officer of the subordinate judiciary proceed with a case in violation
of any order of this Court on the plea that the accused consented
to proceed with the case and that due to proceeding with the case
the accused to the proceeding was not prejudiced ? This is an
absurd proposition.
The expression as employed in his ‘written statement’ that “gnvgvb¨ D”P Av`vj‡Zi †¶vf I Amš w‘ ó m„wóKvix mgy`q f‡j yi Rb¨ Avwg †hgb Av‡MI wb:kZ© ¶gv cÖv_©bv K‡iwQ, Avgvi w i“‡× Av`vjZ Aegvbbvi Kvh©µg MÖnY K‡i jNycv‡c ¸i“`Û bv ‡`Iqvi Rb¨ A`¨I gnvgvb¨ D”P Av`vj‡Zi Kv‡Q GKBi“c AbyK¤úv I gvR©bv cÖv_©bv KiwQ|” is, also, very significant which means
that the contemner judged himself that ‘he committed a ‘jNycvc’
(petty sin) but this Court might impose ‘¸i“`Û’ (major punishment) upon him. We cannot understand, how the contemner understood that the High Court Division would impose
‘¸i“`Û ’ upon him. By throwing the expression “jNycv‡c ¸i“`Û bv ‡`Iqvi Rb¨” upon us, he again questioned the neutrality, impartiality, majesty, integrity and dignity of this Court. According
to him ‘violation of the order of this Court’ is a ‘jNycvc’ i.e minor offence for which he should not be punished with ‘¸i“`Û’. This
view of the contemner clearly suggests that before judgment is pronounced by us for his contempt, the contemner gave judgment
for his own contemptuous acts. We are unable to understand how
a judicial officer of the subordinate judiciary like the contemner
could justify that ‘violation of the order of the superior Court is a ‘jNycvc’ i.e petty offence. The way and manner the contemner has given his explanation is another example of disrespect and disregard to this Court leading to another contempt.
In paragraph 3(I) of the ‘affidavit’ filed by the contemner today, tendering “unconditional, unreserved and unqualified” apology, he again justifies his conduct stating that “The accused petitioner (was) neither suffered nor prejudice (sic) in pursuant to the orders passed by the contemner in the proceeding with the case” and then tendered unconditional apology. We are astonished to see the expression and opinion of the contemner because, he is repeatedly trying to justify his conduct, this way or that, even in his affidavit tendering apology. (emphasis supplied)
Now coming to the cases referred to by the learned Advocate for the contemner. In Shamsur Rahman vs. Tahera Nargis Syed 44 DLR (AD) 237, the Appellate Division held, “if the apology is found to be a real act of contrition, no action need be taken and a word of warning may be enough but if the apology is qualified, hesitating and sought to be used as a device to escape the consequences of the contemner’s action it must be rejected.” In that case the High Court Division convicted and sentenced the contemner without addressing the affidavit of the contemner filed before it tendering unconditional apology. The Appellate Division by accepting the unconditional apology tendered before it remitted the sentence.
In Abdul Haque vs. District Judgeship 51 DLR (AD) 15, the High Court Division convicted and sentenced the contemner. The contemner did not tender unconditional apology before the High Court Division but tendered unconditional apology before the Appellate Division without justifying his conduct. The Appellate Division by accepting the unconditional apology set aside the sentence of the contemner with a warning to him.
In Awlad Hossain vs. Joynab Bibi and another II ADC (2005) 256, the contemners did not tender unconditional apology before the High Court Division rather contested the contempt Rule. The High Court Division, after hearing, convicted and sentenced the contemners. The contemners filed review petition before the High Court Division by tendering unconditional apology but the High Court Division refused to exercise power of review by accepting the unqualified apology as sought. In appeal they tendered unconditional apology before the Appellate Division without justifying their conduct. The Appellate Division by accepting the unconditional apology set aside the conviction and sentence with a warning to the contemners.
In the cases reported in 44 DLR (AD) 239, 51 DLR (AD) 15 and II ADC (2005) 256, as cited by the learned Advocate for the contemner, the Appellate Division took a lenient view in setting aside the sentences awarded by the High Court Division upon the contemners as they without any justification of their conduct tendered unqualified and unconditional apology before the Appellate Division. Accordingly, those decisions will not help this contemner because of the fact that in his affidavit he at first, has justified his conduct stating that ‘in spite of proceeding with the case and pursuant to the orders passed by him the accused petitioner was neither suffered nor prejudiced’ and then tendered unconditional apology before us.
The matter in hand is indeed a serious one and if allowed to go unchecked, it will lead to judicial anarchy, indiscipline and undermine the confidence of the people in the sanctity and finality of an order passed by the Superior Court. The judicial officers of the subordinate courts are duty bound to comply with and follow the orders or directions of this Court without any hesitation or question. If any presiding officer of any such court fails to comply with any order or direction of this Court, then such officer is not only guilty of contempt of this Court but also guilty of insubordination.
The Judicial Officer’s Protection Act, 1850 only protects a judicial officer from the liabilities of any act done or ordered to be done by him in the discharge of his judicial duties in good faith. The said Act cannot protect him from the offence of contempt of this Court because this Court is empowered to deal with contempt matter by itself under Article 108 of the Constitution and this constitutional power of this Court cannot be obstructed or taken away by any other law of the country.
Courts are the last hope of the people in their hour of need and it is to the Courts that they look for justice against injustice and protection of their rights and liberty. It is, therefore, the sacred duty of the Judges to dispense justice in accordance with the law without fear or favour and to conduct themselves in such manner as to inspire confidence of the people in them and through them in the Courts they preside over. On the other hand, the Superior Court took serious view against contempt of its orders by any contemner including the judicial officers, who are expected to respect and obey such orders without any question. Unless the judges themselves do obey and pay due regard to the order or direction of the Superior Court, the court of justice will be hampered.
At the time of issuance of the Rule we made a comment in the Rule issuing order dated 14.8.2023 that “it will not out of context to say that the Bangladesh Judicial Administration Training Institute fails to provide proper training to judicial officers of the subordinate judiciary in regards dispensation of justice to the justice seekers because of the fact that every now and then, we are facing various types of injusticious activities of some of the judicial officers of the subordinate judiciary”. The comment was made considering the arrogant attitude of the contemner before us as well as overall situation. However, we have revisited our comment at the time of hearing of this Rule. Since the Rule involves personal liabilities of the contemner and Bangladesh Judicial Administration Training Institute is not a party to this proceeding and the comment was made without its representation, we are of the view that such comment should be expunged from the Rule issuing order. Accordingly, the comment made by us in the Rule issuing order dated 14.8.2023, as stated above, be expunged. We expect that Bangladesh Judicial Administration Training Institute would introduce a course/subject in regards contempt matter.
In this case, knowing fully well that this Court stayed further proceeding of the case pending before him, the contemner proceeded with the case, fixed dates, one after another, for charge hearing, took hajira (appearance) of the accused and gave undue pressure upon the accused to bring the result of the Rule pending before this Court and lastly, framed charge against the petitioner and at the same time declared another accused fugitive and then fixed the case for recording evidence. All those orders were undoubtedly prejudicial to the accused of the case and were passed in clear violation of the stay order of this Court. We are unable to understand what prompted the contemner to proceed with the case in willful and deliberate violation of the order of this Court.
In the facts and circumstances of the present case, violation of the order of this Court by the contemner was deliberate and intentional. It is not a single violation of the order of this Court. It appears that the contemner committed series of contempts of this Court from 10.01.2019 to 10.04.2023 in proceeding with the case. While proceeding with the case, he was very much aware of the stay order of this Court by which further proceeding of said case was stayed till disposal of the Rule. Such activities of the contemner are clear contempt of this Court. It is not the case of the contemner that he misunderstood the order of the High Court or there was any ambiguity therein particularly when the stay order of this Court was duly communicated to him and he himself quoted the stay order in the order sheet of the case pending before him.
The contemner, it appears from record, committed serious contempt of this Court by his several acts and orders, as referred to above. He ought to have thrown himself at the mercy of this Court as soon as he was directed to explain his position before issuance of contempt Rule. He did not feel to do so even in the written statement submitted by him after the issuance of this Rule. He rather justified his conduct and judged himself that he committed a minor offence by violating the order of this Court for which he should not be imposed with major punishment by us. Moreover, by justifying his conduct in the affidavit tendering apology the contemner stated that ‘in spite of proceeding with the case and pursuant to the orders passed by him the accused petitioner was neither suffered nor prejudiced’. In the aforesaid way he has directly questioned the authority and dignity of this Court and interfered with proper and unfettered administration of this Court. This is an example of worst type of contempt of this Court. Thus the apology tendered by the contemner cannot be considered as an act of contrition or repentance but the same is very much qualified, hesitating and sought to be used as a device to escape the consequences of his actions and as such, the prayer of apology is rejected.
In the result, the Rule is made absolute.
Contemner Md. Sohel Rana is held guilty of gross contempt of this Court beyond reasonable doubt and accordingly, he is convicted for the offence of contempt of this Court.
The contemner had been serving as Chief Judicial Magistrate for years together after being promoted as Additional District Judge. He gathered experience in the judicial functions for so many years. So, he cannot be considered as a junior officer having little/less experience. The orders passed by him in the pending criminal case, the written explanation, written statement and affidavit seeking apology submitted by him before us clearly suggest that the contemner lacks of judicial temperament. Being an experienced judicial officer, the contemner committed series of contempt of this Court as well as repeatedly justified his conduct. Accordingly, he deserves highest sentence as per Contempt of Court Act. But taking a compassionate view, we sentence the contemner to suffer simple imprisonment for 30 (thirty) days and to pay a fine of Taka 5,000/- (five thousand) in default, to suffer simple imprisonment for 30 (thirty) days more.
The contemner is directed to deposit the amount in the account of the Supreme Court maintained by the Registrar General and to surrender before the Court of Chief Judicial Magistrate, Dhaka to serve out the sentence within 30 ( thirty) days from date.
Before recess we have pronounced this judgment and then the contemner left this Court room. After recess, Mr. Shah Monjurul Haq, learned Advocate appearing with the contemner submits that the contemner is willing to prefer appeal before the Appellate Division against this judgment and he prays for granting bail to the contemner.
Since the contemner is willing to prefer an appeal before the Appellate Division and the sentence is a short term one, we are inclined to suspend the sentence for a limited period with a view to giving him an opportunity to prefer the appeal.
Accordingly, the sentence awarded upon Mr. Md. Sohel Rana be suspended for a period of 30 (thirty) days from date.
Communicate a copy of this judgment to:
(Justice Md. Badruzzaman)
I agree.
(Justice S M Masud Hossain Dolon)