IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION) Present

Mr. Justice Ashish Ranjan Das

And

Mr. Justice Md. Riaz Uddin Khan

Criminal Miscellaneous Case No. 57588 of 2023

IN THE MATTER OF :

An application under Section 526 of the Code of Criminal Procedure

-And-

IN THE MATTER OF :

Md. Abu Saleh Sikder @ Saleh Sikder

...Accused- Petitioner Versus

The State

...Opposite Party Mr. Md. Ozi Ullah, with

Mr. Md. Abdus Salam, Advocates

..... For Accused-Petitioner

Ms. Fatema Rashid, A.A.G

Mr. Md. Shafiquzzaman, A.A.G. and

Mr. Md. Akber Hossain, A.A.G

….... For the State

Judgment on: 20.02.2024

Md. Riaz Uddin Khan, J:

Upon an application under section 526 of the Code of Criminal Procedure this Rule was issued asking the opposite party State to show cause as to why the Druta Bichar case No. 02 of 2021 arising out of Motijheel Police Station Case No. 23 dated 17.09.2016 corresponding to G.R. No. 284 of 2016 continuing the trial by violating Section 10 of the Druta Bichar Tribunal Ain, 2002, now pending in the Court of Druta Bichar Tribunal No.01, Dhaka should not be transferred to the

original  Court  of  Additional  Metropolitan Sessions Judge, 4th Court, Dhaka for trial and/or

pass such other or further order or orders as to this Court may seem fit and appropriate.

Motijheel Police Station Case No. 23 dated 17.09.2016 corresponding to G.R. No. 284 of 2016 under sections 302/307/326/34 of the Penal Code was lodged against some unknown persons. However, after investigation charge sheet was submitted against 8(eight) accused persons including the present petitioner Md. Abu Saleh Sikder @ Saleh Sikder under the aforesaid sections of the Penal Code. The case was transmitted to the Court of Additional Metropolitan Sessions Judge, 4th Court, Dhaka for trial. At that stage the Government by a gazette notification transferred the case to the Druta Bichar Tribunal No.01, Dhaka for trial and the tribunal after receiving the case on 16.02.2021 fixed the case for examination of witnesses. On 03.08.2023 while the trial was in progress, the petitioner filed an application before the tribunal praying for transfer of the case to the original Court wherefrom the case was transferred to the tribunal as more than 135 working days has been elapsed but the tribunal could not conclude the trial as mandated in section 10 of the Druta Bichar Tribunal Ain, 2002. The tribunal rejected the application by order dated 03.08.2023.

Mr. Md. Ozi Ullah along with Mr. Md. Abdus Salam, the learned Advocate appearing for the accused-petitioner submits that the Druta Bichar Tribunal after receiving the case record from the Court of Additional Metropolitan Sessions Judge, 4th  Court,  Dhaka  started  its  function  on 16.02.2021 and till 03.08.2023 more than 2 (two) years 04 (four) months and 17(seventeen) days have been passed which was much more than 135 working days. He then submits that according to sub-section 4 of section 10 of the Druta Bichar Tribunal Ain, as the tribunal could not conclude the trial within 135 working days it should send the case back to the original Court wherefrom the case was transferred to the tribunal. The learned Advocate further submits that this is a mandatory provision of law which the tribunal must follow. In support of his submission the learned Advocate placed the decision in the case of Md. Shohrab Vs Bangladesh and others reported in (2021) 22 ALR HCD page-204.

On the other hand the learned Assistant Attorney General (AAG) Mr. Md. Shafiquzzaman, appearing  for  the  State  submits  that  the provision of section 10(4) of the Druta Bihar Tribunal Ain is not a mandatory provision rather directory. The learned AAG further submits that at the time of issuance of Rule there was no order of stay for which the learned Judge of the Druta Bihar Tribunal continued the trial of the

case but yet could not conclude the trial. The

learned  AAG  finally  submits  that  since  the provision as contemplated in section 10(4 and 5)

of the Ain is not mandatory as decided by the

Apex Court of the country this case should not be transferred from Druta Bichar Tribunal to the original Court wherefrom it was transferred. In

this regard he referred the case of S.M. Mozzamel

Hoque Talukder Vs The State reported in 68 DLR

(AD) 370.

We have heard the submissions of both the parties, perused the application along with the annexures. The Rule was issued on 09.10.2023 and

though there was no order of stay, the Druta

Bichar Tribunal till today could not conclude the

trial as mandated by the Druta Bichar Tribunal

Ain, 2002. From the preamble read with section 6

of  the  Ain  it  appears  that  the  legislature

enacted this law for speedy trial of some cases

for public interest, such as the case of Murder,

Rape,  Firearms,  explosive  substances  and dangerous Drugs (Madok Drabya). For the purpose,

the legislature laid down some special procedure

to conclude the trial speedily within the time specified by the Ain. Section 10 of the Ain reads

as follows-

“j¡jm¡ ¢eÖf¢šl ®ju¡c- 10z (1) â¦a ¢hQ¡l VÊ¡Ch¤Ée¡−m ÙÛ¡e¡¿¹¢la ®L¡e j¡jm¡ ÙÛ¡e¡¿¹−ll a¡¢lM qC−a eîC L¡kÑ ¢ch−pl j−dÉ ¢eÖf¢š

L¢l−a qC−hz

2. ®L¡e A¢eh¡kÑ L¡l−Z Eš² ®ju¡−cl j−dÉ ®L¡e j¡jm¡ ¢eÖf¢š Ll¡

pñh e¡ qC−m, â¦a ¢hQ¡l VÊ¡Ch¤Ée¡m L¡lZ ¢m¢fhÜ L¢lu¡ A¢a¢lš²

¢œn L¡kÑ ¢ch−pl j−dÉ j¡jm¡¢V ¢eÖf¢š L¢l−a f¡¢l−h Hhw aapÇf−LÑ p¤fÊ£j ®L¡VÑ−L ¢m¢Mai¡−h Ah¢qa L¢l−h, k¡q¡l HL¢V Ae¤¢m¢f plL¡−ll ¢eLV ®fÐlZ L¢l−a qC−hz 

3.    Ef-d¡l¡ (2) H E¢õ¢Ma h¢dÑa pj−ul j−dÉJ k¢c k¤¢š²p‰a

®L¡e L¡l−Z ®L¡e j¡jm¡ ¢eÖf¢š Ll¡ pñh e¡ qu, a¡q¡ qC−m VÊ¡Ch¤Ée¡m Eq¡l L¡lZ ¢m¢fhÜ L¢lu¡ j¡jm¡¢V ¢eÖf¢šl SeÉ phÑ−no

B−l¡ f−el L¡kÑ ¢chp pju ¢e−a f¡¢l−h Hhw HCl©f pju h¢dÑaLlZ pÇf−LÑ p¤fУj ®L¡VÑ−L ¢m¢Mai¡−h Ah¢qa L¢l−h, k¡q¡l HL¢V Ae¤¢m¢f plL¡−ll ¢eLV ®fÐlZ L¢l−a qC−hz

4.    ®L¡e ®r−œ Ef-d¡l¡ (3) H E¢õ¢Ma phÑ−no h¢dÑa ®ju¡−cl j−dÉJ k¢c −L¡e j¡jm¡ ¢eÖf¢š Ll¡ pñh e¡ qu, a¡q¡ qC−m j¡jm¡¢V

®k Bc¡ma qC−a â¦a ¢hQ¡l VÊ¡Ch¤Ée¡−m ÙÛ¡e¡¿¹¢la Ll¡ qCu¡¢Rm ®pC Bc¡m−a Eš² VÊ¡Ch¤Ée¡m L¡lZ ¢m¢fhÜ Llax Eq¡ ®gla f¡W¡C−h Hhw Eš²l©−f ®gla f¡W¡−e¡ pÇf−LÑ L¡lZ ¢m¢fhÜ Llax p¤fУj ®L¡VÑ−L ¢m¢Mai¡−h Ah¢qa L¢l−h, k¡q¡l HL¢V Ae¤¢m¢f plL¡−ll ¢eLV ®fÐlZ L¢l−a qC−hz

5.    Ef-d¡l¡ (4) Hl Ad£e ®L¡e j¡jm¡ ®L¡e Bc¡m−a ®gla B¢p−m ®pC j¡jm¡¢Vl ¢hQ¡lL¡kÑ Eš² Bc¡m−a ¢hQ¡l¡d£e AeÉ¡eÉ pLm j¡jm¡l Efl fСd¡eÉ f¡C−h Hhw ®k fkÑ¡−u j¡jm¡¢V ®gla B¢pu¡−R ®pC fkÑ¡u qC−a Eq¡l ¢hQ¡lL¡kÑ f¢lQ¡me¡ Ll¡ qC−h, ®ke

Eš² Bc¡m−a j¡jm¡¢V I fkÑ¡−u ¢hQ¡l¡d£e ¢Rm Hhw Cq¡ LMeJ ÙÛ¡e¡¿¹¢la qu e¡C: a−h naÑ b¡−L ®k, Eš² Bc¡m−a Eš² pj−u k¢c

AeÉ ®L¡e j¡jm¡l öe¡e£ Q¢m−a b¡−L, a−h I j¡jm¡l öe¡e£ ®no

qCh¡l fl ®glafСç j¡jm¡¢Vl öe¡e£ öl¦ L¢l−a qC−h Hhw Cq¡l

öe¡e£ öl¦ L¢lh¡l fl Cq¡ ®no e¡ qJu¡ fkÑ¿¹ HLV¡e¡ Q¢m−a b¡¢L−h

Hhw A¢eh¡kÑ ®L¡e L¡lZ hÉa£a, k¡q¡ ¢m¢fhÜ L¢l−a qC−h, Cq¡l öe¡e£ j¤mah£ Ll¡ k¡C−h e¡z”

It appears from section 10 of the Ain that

the legislature fixed specific number of working

days within which the tribunal is to complete the trial. Sub-section 1-3 clearly states that the tribunal  should  complete  the  trial  within 90+30+15=135 working days and if the tribunal fails to conclude the trial it has to state the reason for its failure to conclude the trial within the stipulated time and to apprise the Supreme Court in writing, a copy of which has to be submitted to the Government. Sub-section 4 of section 10 states that if the tribunal fails to conclude the trial within the specified time, the tribunal shall sent the case back to the original Court wherefrom it received the case record and also state the reason for doing so and apprise the Supreme Court stating the reason for sending the case back in writing, a copy of which has to be submitted to the Government. Sub-section 5 states that after receiving the case from the Druta Bichar Tribunal the original Court shall give preference of the case over all other cases pending before it, provided that if the Court is in  the  midst  of  hearing  of  any  case  after concluding that case the case received back from the tribunal has to be tried without any break and the case should not be adjourned other than an unavoidable circumstances of which the reason is  to  be  mentioned.  Section  12  of  the  Ain mandates that the tribunal shall try the case without any break and shall not adjourn the case unless  it  is  necessary  and  in  that  case adjournment shall not be more that 3 (three) working days. Provided that if such adjournments make the trial impossible to conclude within specified time as mentioned in section 10, then such adjournment shall not be allowed. Section 15 of the Ain provides for accountability of the person(s) who is/are responsible for failure to conclude the trial as mandated under section 10(3) of the Ain. From reading the Ain as a whole it is crystal clear that if the provisions of the Ain is not followed, then the purpose of the Ain would be frustrated which cannot be the intention of the legislature. There is difference between the mere directory provision and the provision of section 10(4) of the Druta Bichr Tribunal Ain. The former has no consequence or to do anything while in the later case the tribunal is to send the case back to the original court wherefrom the case  was  transferred  to  it.  For  clear understanding of the difference between these two types let us quote section 339C of the Code of Criminal Procedure which is as under:

339C. (1) A Magistrate shall conclude the trial of a case within one hundred and eighty days from the date on which the case is received by him for trial.

2.         A Sessions Judge, an Additional Sessions Judge or An Assistant Judge shall conclude the trial of a case within three hundred and sixty days

from the date on which the case is received by him for trial.

(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), where a person is accused in several cases and such cases are brought for trial before a Magistrate or a Court of Session, the time limit specified in sub-section (1) or sub-section (2) for the  trial  of  such  cases  shall  run consecutively.

(2B) Notwithstanding the transfer of a case from one Court to another Court, the time specified in sub-section (1) or sub-section (2) shall be the time for concluding the trial of ac case.

3.     Omitted
4.     If a trial cannot be concluded within the specified time, the accused in the case, if he is accused of a non- bailable offence, may be released on bail to the satisfaction of the Court, unless for reasons to be recorded in writing, the Court otherwise directs.
5.     Nothing in this section shall apply to the trial of a case under section 400 and 401 of the Penal Code (Act XLV of 1860), or to the trial of a case to which the peovisions of Chapter XXXIV apply.

6.     In this section, in determining the time for the purpose of a trial,-

1.     omitted
2.     the days spent on account of the absconsion of an accused after his release on bail, if any, shall not be counted.     

From reading of the above provision we also find specified period to conclude the trial but it is clear that this section 339C of the Code of Criminal Procedure is a mere directory provision and not mandatory as the Court if cannot conclude the trial within the specified period has nothing to do but to continue the trial, though the Court may release the accused on bail. On the other hand  if  the  Druto  Bichar  Tribunal  fails  to conclude the trial within specified period the Tribunal is to send back the case wherefrom it received the same.   

Be that as it may, our Appellate Division in the reported case of S.M. Mozzamel Hoque Talukder reported in 68 DLR (supra) held that-

“Since  no  consequence  has  been provided for in section 10(4)(5) the trial by the same tribunal even  after  the  expiry  of  135 working days will not be illegal or without jurisdiction.”

We are in respectful agreement with the above view expressed by the apex Court of the country that the trial if held after the expiry of stipulated time will not be illegal or without jurisdiction. Nonetheless, it does not in any way mean that the tribunal is not obliged to follow the provision of law enacted by the parliament so far  it  is  in  the  statute  unless  declared unconstitutional by the Supreme Court. However, considering  the  said  case  decided  by  the Appellate Division the High Court Division in the case of Md. Shohrab (supra) observed as under-

“4.6 Therefore, it cannot be said that failure of completion of trial within 135 days is without any consequence provided by law. Rather, the failure of completion of trial within 135 working days has clear consequences as provided by law, which are as follows:

1.      The case has to be returned to the original court.
2.      Upon returning the case, the Tribunal is required to    send to the Supreme Court in writing assigning reason for the failure of completion trial of the case within the said 135 days.
3.      The copy of that report has also to be sent to the government.
4.      Not only that, there are some other consequences of failure of

the Tribunal to complete the trial within the said period, they are:

1.          the case returned to the original  Court  shall  get priority over other cases in that original Court,
2.          that  case  has  to  be tried by the original Court from the stage it has been returned as if it was never transferred to the tribunal and
3.          the said case before the original  Court  has  to  be tried without any adjournment except  for  unavoidable reason.

4.7  Therefore,  it  appears  that  the failure      to complete the trial within 135 days has clear consequences provided  by  law.  Therefore,  as repeatedly  held  by  our  Appellate Division and High Court Division in various cases, this requirement cannot be held to be a directory requirement. Rather, it is a mandatory requirement of law.”

Against the aforesaid judgment of the High Court  Division  the  Government  filed  Civil Petition for Leave to Appeal No. 670 of 2022 and

the  Appellate  Division  by  its  order  dated 09.11.2023 disposed of the Civil Petition without setting aside the decision and conclusion of the judgment passed by the High Court Division in concluding paragraph No. 4.20. Nevertheless, the Honorable  Appellate  Division  was  pleased  to expunge  some  findings  and  observations  made therein from paragraph Nos. 4.8 to 4.13 and 4.19.

There is no doubt that the decision passed in the S.M. Mozzamel Hoque Talukder (supra) case by the Honorable Appellate Division is binding upon this division and all Courts subordinate to the Supreme Court as per Article 111 of the Constitution. Since the Appellate Division held in the above mentioned case that the provision of section 10 (4 and 5) having no consequence is not mandatory we are bound by that decision. We are with the respectful agreement of the decision of the Appellate Division that the provision is not mandatory but directory. However, nowhere in any decision it is held that directory provision is not to be followed. In the present case, it was brought into the notice of the tribunal by filing application by the accused that more that 135 working days have elapsed for which the tribunal is required to send the case back to the Court wherefrom it was transferred to it. The spirit of the Druta Bichar Tribunal Ain, 2002 is speedy trial  of  some  specified  cases  of  public importance as mandated by our Constitution under Article 35(3) and if the tribunal do not follow the provisions specified in the Ain then this provisions become nugatory. The legislature in their wisdom incorporated such a provision which is intra vires, we do not understand why the tribunal shall not follow that provision. In such view of the matter, we are of the opinion that the sub-section 4 and 5 of section 10 is not mandatory in the sense that if the tribunal without noticing the working days concludes the trial beyond the 135 working days then the trial or the judgment passed by the tribunal will not be illegal or without jurisdiction. But when there is a time to send back the case to the original court and it was brought into the notice of  the  tribunal  by  filing  application,  the tribunal is obliged to follow the law enacted by the legislature and not declared ultra vires the constitution by the Supreme Court. So long this provision is in the statute every Court of the land must follow.

From the information provided by the learned AAG, it appears that the trial has not been concluded and substantial numbers of witnesses are to be examined yet. The tribunal started this case on 16.02.2021 and in the mean time, more than 3(three) years have elapsed though the Ain clearly  mandates  that  the  tribunal  has  to conclude the trial within 135 working days. Since the law specifically mandates that the tribunal is to send back the case to the original Court wherefrom it received the case we are of the opinion that this provision is to be followed

unless in some exceptional circumstances where

the case is in the last stage such as for argument or judgment.

In the facts and circumstances of the case

and the provisions of law discussed above, we

find substance in the case for which we are constrained to interfere.

In the result the Rule is made absolute.

The Druta Bichar Tribunal No.1, Dhaka is directed to send the Druta Bichar Case No. 02 of

2021 arising out of Motijheel Police Station Case

No. 23 dated 17.09.2016 corresponding to G.R.

Case No. 284 of 2016 back to the original Court

of  learned  Additional  Metropolitan  Sessions

Judge, 4th Court, Dhaka, within 3(three) working

days from receipt of this judgment and order without fail, if in the mean time, the trial is

not concluded.

Communicate the judgment and order at once.        

Ashish Ranjan Das, J:

I agree.

Ziaul Karim Bench Officer