1
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 2108 of 2011. In the matter of:
An application under Article 102(2)(a) (i) of the Constitution of the People’s Republic of Bangladesh.
-AND-
In the matter of:
Md. Saiful Islam @ Pavel, Son of Md. Ambar Ali of Village: Matuail (Uttarpara) Mindibari, Police Station: Jatrabari, District: Dhaka.
………..Petitioner -Versus-
Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka and others
.…….Respondents
Mr. M.H. Rashid, Advocate
...…For the petitioner
Mr. SK. Shaifuzzaman (Zaman), DAG
Mr. Md. Shafiquzzaman (Rana). A.A.G.
…….. For the respondents
Judgment On 07.06.2023
Present:
Mr. Justice K.M. Kamrul Kader
And
Mr. Justice Mohammad Showkat Ali Chowdhury
Mohammad Showkat Ali Chowdhury, J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh the Rule Nisi was issued on 08.05.2011 in the following terms:
“Let a Rule Nisi be issued calling upon the respondents Nos.2 to 3 show cause as to why they shall not be directed to submit report to the Supreme Court of Bangladesh and the
government as well after expiry of the statutory period in concluding the trial in view of section 20 and 31 Ka of the Nari- O-Shishu Nirjatan Daman Ain, 2000 in Nari-O-Shishu Case No. 346 of 2008 corresponding to G.R.No.62 of 2008 arising out of Shampur P.S. Case No. 62 dated 27.01.2008 under section 9(1)/30 of the Nari-O-Shishu Nirjatan Ain, 2000 now pending in the Nari-O-Shishu Nirjatan Daman Trinunal No.1, Dhaka and/or such other or further order or orders pass as to this court may seem fit and proper. ”
follows:
Most. Parvin Akhter, victim’s mother lodged an F.I.R with the Shampur Police Station on 27.01.2008 stating inter alia that her daughter Miss Tahamina Akhter Popi (20) is a student of Hon’s 1st year in Eden College, Dhaka. At the time of going to the college Miss Tahmina Akhter had been familiar with the accused petitioner and the victim and the accused came very near with each other and very often, the accused and her daughter moved here and there. On 08.07.2007 at 9.00 a.m. Miss. Tahamina Akhter went out of her flat for going to College. On that date Tahamina Akhter has moved with accused Nos. 1,2, 3 and at 1.00 p.m and went to the residence of accused No.2-4, accused No.1 raped informant’s daughter twice against her will making proposal for marriage and after that the accused petitioner used to rape the victim taking there for several times and as a result the victim became pregnant. During the pregnancy period of five months on 19.01.2008, the accused- petitioner along with accused Nos.2 and 3 took the victim to the accused No.5 while the victim was going to her college and accused No.5 forcibly made her abortion against her will and when the victim came back to her residence with the help of accused Nos.1, 2 and 3 knowing all the facts and found the victim was severely bleeding. The informant has admitted her daughter in Dhaka Medical College Hospital for treatment and then lodged FIR being Shampur P.S. Case No.62 dated 27.01.2008 under Section 9(1)/13 of the Nari-O-Shishu Nirjatan Ain, 2000 (in short the Ain, 2000) now pending in the Nari-O- Shishu Nirjatan Daman Trinunal No.1, Dhaka.
of the aforesaid allegation Shampur P.S. Case No. 62 dated 27.01.2008 under Section 9(1)/30 of the Ain, 2000 was started against the above mentioned accused persons and after investigation the Investigating Officer submitted charge sheet being No.285 dated 17.06.2008 under section 9(1) of the Ain, 2000 and section 313 of the Penal Code against the accused petitioner and 3 others. Thereafter, the case was transferred to Nari-O-Shishu Nirjatan Daman Tribunal No.1, Dhaka for trial. The Tribunal fixed on 23.07.2008 for taking cognizance against the accused, thereafter; the Tribunal framed charge against the accused petitioner under section 9(1)/30 of the Ain, 2000 and discharged the other accused person.
received by the Tribunal on 13.07.2008 for trial but the order No. 34 dated 31.01.2011 shows that the proceeding is still pending before the Tribunal which is a violation of section 31Ka of the Ain, 2000.
of the Ain, 2000 which mandates that the trial of the case shall be concluded within 180 days from the receipt the case record. Section 31A of Ain, 2000 lays down the provision that in case of failure of conclusion of trial of the case within the time fixed by section 20 of the Ain, 2000, in that case, the Tribunal, Public Prosecutor and concerned Police Official shall within 30 days submit report to the Supreme Court and the Government stating the reason of failure of conclusion of trial within the time fixed by section 20 of the Ain, 2000 and the concerned authority after perusal the report will take appropriate action against the persons responsible for their failure in conclusion of trial.
respondent Nos.2 and 3 are required to submit report by stating reasons of failure of conclusion of trial to the Supreme Court of Bangladesh and the Government and the concerned authority after considering the report will take appropriate action against those responsible person or persons for whom the trial could not be completed within the period fixed by law. The respondent Nos.2 and 3 having failed to do so, they may be directed to submit report to the Supreme Court of Bangladesh and the Government as well what they are required by law to do.
trial within the statutory period as per section 20 nor sent the report to the Supreme Court of Bangladesh and the Government as per section 31ka of the Ain, 2000, what he is required by law to do so and the Tribunal not doing so, the continuation of the proceeding of Nari-O-Shishu Case No.346 of 2008 by the Tribunal No.1 is violation of mandatory provision of law and as such, the Tribunal is duty bound to stay all further proceeding of the aforesaid case.
by and dissatisfied with the impugned proceedings pending before the respondent No.2 and there being no other alternative speedy and equally efficacious remedy provided by law moved this petition under Article 102 of our Constitution and obtained the present Rule.
on behalf of the petitioner informed us that the accused petitioner
took case file from him and he has got no instruction to make submission before this court.
learned Deputy Attorney General with Mr. Md. Shafiquzzaman (Rana), the learned Assistant Attorney General on behalf of the Respondents 1-3 contested the Rule and by opposing submits that the proceeding of the Nari-O-Shishu Nirjatan Damon case cannot be stayed as because for making no report to the Supreme Court of Bangladesh as well as to the Government by the Tribunal and others concerned for non conclusion of trial within the stipulated period of time and for that in no way affect the proceeding of the case rather law suggests to take appropriate action against the persons who are answerable to the authorities and in view of the above and prayed for discharging the Rule.
petitioner about the matter that he has got no instruction to make submission and also the learned Deputy Attorney General along with learned Assistant Attorney General, perused the materials on record and relevant sections 20 and 31Ka of the Ain, 2000.
petitioner was enlarged on bail by the Tribunal on 11.06.2009. It further appears from the record that the learned Tribunal on 23.07.2008 took cognizance against accused persons, (1) Md. Saiful Islam @ Pavel (2) Md. Lokman Bhuiyan and (3) Anowara Begum under Section 9(1)/30 of the Ain, 2000 along with section 313 of the Penal Code and discharged accused Md.Kamal and Md. Sidu. The other accused have been granted bail by the Tribunal.
against the accused petitioner Md. Saiful Islam @ Pavel under section 9(1)/30 of the Ain, 2000 which was read over and explained to him who pleaded not guilty and claimed to be tried.
Loakman Bhuiyan were discharged by the Tribunal and the Tribunal fixed the case for examination of witnesses on 07.11.2010 and on that date no witnesses appeared before the Tribunal and the Public Prosecutor prayed for time and the case was fixed for examination witnesses on 13.03.2011.
Rule on 08.05.2011 the interval was only six months, it is our common knowledge the Nair-O-Shishu Nirjaton Damon Tribunal of Dhaka Tribunal No.1 and other Tribunals are overburdened with huge number of cases..
like to reproduce the provisions of sections 20 and 31A of the Ain, 2000 hereunder. Section 20 runs as under,
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jdÉ Y~Ê¡Ch¤Ée¡m ¢hQ¡lL¡kÑ pj¡ç L¢lhz
31 Lz VÊ¡Ch¤Ée¡m, CaÉ¡¢cl Sh¡h¢c¢qa ¡z(1) ®L¡e j¡jm¡ d¡l¡ 20 Hl
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Eq¡l L¡lZ ¢m¢fhಠL¢lu¡ HL¢V f¢Ëahce ¢œn ¢cel jdÉ p¤fË£j ®L¡VÑl
¢eLV c¡¢Mm L¢la qCh, k¡q¡l HL¢V Ae¤¢m¢f plL¡ll ¢eLV ®fËlZ L¢la qChz
appears that the above section of the Ain, 2000 requires the Tribunal shall conclude the trial of the case within 180(one hundred and eighty) days from the date of receipt of the case record and from perusal of section 31Ka of the Ain, 2000, it appears that if the trial of the case is not concluded within 180 (one hundred and eighty) days then the Tribunal within 30 (thirty) days shall submit a report to the Supreme Court stating the reasons of failure of conclusion of trial of the case within 180 (one hundred and eighty) days and a copy of the said report be also sent to the government and in the same matter the Public Prosecutor and concerned Police Officer within 30 days also submit report to the Government stating reason of failure of conclusion of trial within the time limit and a of copy of that report be sent to the Supreme Court and if the appropriate authority on perusal of the report is not satisfied then the concerned authority will take appropriate action against those responsible persons for their failure to conclude the trial of the case within the prescribed time limit.
2000, it appears that for failure of the conclusion of the trial of the case by the Tribunal, the proceeding of Nari-O-Shishu case by no stretch of imagination be stayed and the statutory provision of 180 (one hundred and eighty) days for conclusion of trial of Nari-O-Shishu case is not mandatory but directory because no consequences thereof has been provided in sections 20 and 31 Ka of the Ain, 2000.
accused petitioner moved this petition to stay proceedings of Nari-O-Shishu Case No. 346 of 2008 but above mentioned sections of the Ain, 2000 do not warrant to stay proceedings of the case, in case of failure of conclusion of the trial of the case within the specified time.
Bhuiyan and Anowara Begum remained absconding that is why the Tribunal on 05.10.2008 issued proclamation and attachment of the properties of those accused persons.
Tribunal received case record on 13.07. 2008 and on 06.05.2009 the Tribunal passed order fixing the date on 11.06.2009 for return of publication of notice in the newspaper against the absconding accused and on 11.04.2010 the Tribunal got the notice published in the newspaper against the absconding accused. So, it is crystal clear that the Tribunal was engaged in taking some procedural steps so that the case be ready for trial and the record reveals that the case is not long pending but the accused petitioner without any valid reason moved this writ petition.
petitioner submitted discharge petition and it appears that on 04.08.2010 Saiful Islam @ Pavel prayed for adjournment for hearing of petition of discharge prayer.
witnesses appeared to adduce evidence and prayed for time which was allowed and fixed the next date on 13.03.2011 for examining witnesses but record reveals that the accused petitioner did not submit any certified copy of the next orders of the Tribunal and withheld those orders and out of the blue, he moved this writ petition under Article 102 of our Constitution on 08.05.2011 before this court and obtained the instant Rule and thereby the proceeding of Nari-O-Shishu case No. 346 of 2008, now pending in the Nari-O-Shishu Nirjaton Daman Tribunal No.1, Dhaka stayed for 3(three) months and extended from time to time.
consultation sections 20 and 31Ka of the Ain, 2000, it appears that the case is pending for not long time and the petitioner very cleverly withheld the next orders after the order 07.11.2010 which appears to be malafide action of the accused petitioner and the grounds which have been taken for staying the proceeding of the said Nari-O-Shishu Case is not infringement of fundamental right of the petitioner because of no legal right has been accrued in favour of the accused petitioner.
of law, we find no merit in this Rule.
any order as to costs.
hereby recalled and vacated. The concerned Tribunal is directed to conclude the trial of Nari-O-Shishu Case No. 346 of 2008 corresponding to G.R.No.62 of 2008 arising out of Shampur P.S. Case No.62 dated 27.01.2008 under section 9(1)/30 of the Ain, 2000 expeditiously preferably within 6(six) months from the date of the receipt of this judgment and order.
and order of this court to the concerned Tribunal at once.
K.M. Kamrul Kader, J
I agree