IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

   PRESENT:

Mr. Justice Surendra Kumar Sinha, Chief Justice Mr. Justice Syed Mahmud Hossain

Mr. Justice Hasan Foez Siddique

Mr. Justice Mirza Hussain Haider

CIVIL APPEAL NO.53 OF 2004.

(From the judgment and order dated 07.04.2003 passed by the High Court Division in Writ Petition No.3806 of 1998.)

Bangladesh, represented by the Appellants. Secretary, Ministry of Law, Justice and

Parliamentary Affairs and others:

=Versus=

Bangladesh Legal Aid and Services Trust

(BLAST) represented by Dr. Shahdeen Respondents. Malik and others:

For the Appellants: Mr. Mahbubey Alam, Attorney

General, (with Mr. Murad Reza, Additional Attorney General and Mr. Sheik Saifuzzaman, Deputy Attorney General, instructed by Mr. Ferozur Rahman, Advocate-on- Record.

For the Respondents:

Dr. Kamal Hossain, Senior Advocate, Mr. M. Amirul Islam, Senior Advocate, (with Mr. Idrisur Rahman, Advocate & Mrs. Sara Hossain Advocate,) instructed by Mrs. Sufia Khatun, Advocate-on-Record.

Date of hearing: 22nd March, 11th and 24th May, 2016. Date of Judgment: 24th May, 2016.

J U D G M E N T

Surendra Kumar Sinha,CJ:

Historical Background of the Legal System of Bangladesh

Blackstone’s Commentaries on the Laws of England has been termed as ‘The bible of American

lawyers’ which is the most influential book in English on the English legal system and has nourished the American renaissance of the common law ever since its publication (1765-69). Boorstin’s great essay on the commentaries, show how Blackstone, employing eighteenth-century ideas of science, religion, history, aesthetics, and philosophy, made of the law both a conservative and a mysterious science. In his ‘The Mysterious Science of the Law’ Daniel J. Boorstin, in Chapter two under the caption ‘The use of History’, the author stated, “The conflict between Blackstone’s Science of Law and his Mystery of Law was never to be entirely resolved. This was nothing less than the conflict between man’s desire to understand all and his fear that he might discover too much. Yet eighteenth- century England was able to find a partial solution of the difficulty by appealing to experience. Since Locke had destroyed all innate ideas and made experience the primary source of ideas, the student

of society, like the philosopher, could abandon the a priori path for the path of experience. In practice, this meant that the eighteenth-century mind came to make every social science, as Blackstone made the study of law, simply a branch of the study of history. The accumulation of all experience, history became the whole study of man, and the entire practical aspect of philosophy. In 1735, Bolingbroke summed up this notion when he said that history was “philosophy teaching by examples.”

By “philosophy” was meant not the abstruse distinctions of metaphysics, but the practical “science of human nature..” “Nature has done her part. She has opened this study to every man who can read and think; and what she has made the most agreeable, reason can make the most useful, application of our minds.’

Hume, in 1739, called his Treatise an attempt to write other Principia by applying the Newtonian method to philosophy. But how was this to be done? Here he answered with the voice of Locke. “And as the science of man is the only solid foundation for the other sciences, so the only solid foundation we can give to this science itself must be laid on experience and observation.” That he thought history the final and proper source of this finally turning from philosophy to the study of the past. But he was clear in defining the data and method of this science:

The laws of England were for Blackstone and body for studying the anatomy of laws in general. This understanding of laws in general was to be sought in the Commentaries by studying the English law historically, an approach which before the eighteenth century had not been seriously undertaken. Now the awakening historical consciousness of the Enlightenment was beginning to show itself in legal scholarship.

Hale, the first English legal historian, had most shaped Blackstone’s general conception, and the Commentaries themselves were in turn the inspiration for John Reeves’ ‘History of English Law’.

From ancient times in Bangladesh, there existed local assemblies in village known as Panchayets. They settled disputes and their decisions were in the nature of compromise between the parties. But at times, they pronounced regular judgments. The law in force then was tribal customary laws. By lapse of time, there was transition to centralised rule by the king who at the apex was recognised as the ultimate judicial authority. He held courts in person to decide cases assisted by Brahmins. In the latter period, a gradation of courts was set up in towns and cities. Appeals preferred from the decisions of these local courts to the Chief Court at the capital, from whose decisions appeals laid to the Royal Court presided over by the king. The laws applied by these courts were principally the customary laws, and shastric or canon laws, the sanctity of which was well recognized both by the courts as well as the people. Besides, dicta emanating from religion were regarded as a major source of law. This system prevailed until the end of twelfth century. When the foundation of Muslim dominion was laid towards the beginning of the thirteenth century, the earlier system remained operative in the country with some modifications here and there until the advent of the Mughals. They set up courts throughout their empire with Qazi at the head. Qazi used to dispense justice both civil and criminal laws.

The Mughals established their rule in this part of the Sub-continent in the Sixteenth century. The main objects of their administration were to assess and collect revenue. Nonetheless, administration of justice was regarded throughout the Mughal period as a subject of great importance and they had introduced a well-organized system of law. For the purpose of overall administration, the areas now constituting Bangladesh, like other provinces (The Province was comparable to a modern division) of the Mughal empire, was divided into districts, and districts into sub-divisions.

At lower tier it was the village where the Mughals retained the ancient system of getting petty disputes settled by the local Panchayets. In every town, there was a regular Town Court presided over by a  Qazi known as  Qazi-e-Parganah. This court generally dealt with both civil and criminal matters.  There was Fauzdar, who as the name indicates, was a commander of and unit of armed force. He also discharged some general executive functions and was placed in charge of suitable sub- division. In the early period of the Mughal rule, the Fauzdars tried petty criminal matters, but as the system underwent some changes during the period between 1750 and 1857, in the latter period, Fauzdars maintained ‘Fauzdari Court’ for ad- ministration of criminal justice at the district level and dealt with most of the criminal cases

except capital sentences. The trace of its name still survives. Today’s Criminal Courts or ‘Fauzdari Adalat’ as it is called in Bengali, are the improved version of Fauzdari Courts of those days.

There was existence of Kotwal who functioned as chief of town police, censor of morals and local chief of the intelligence system. He performed the functions of Police Magistrate and tried petty criminal cases. The office of Kotwal was known as Kotwali, which was the principal police station of a town. The nomenclature of Kotwali even survives today. In almost all important towns and cities in Bangladesh, there exist at least one police station called ’Kotwali’ police. Kotwal system remained in force until the East India Company took up the administration of justice in the country through acquisition of Diwani. There were two other judicial functionaries, known as Amin and Qanungo. Amin, as it literally means, was an Umpire between the State demanding revenue and the individual raiyats paying it. He was basically an officer of the town and his jurisdiction extended to the disposal of revenue cases. The Qanungo, as the name implies, was the Registrar of Public Records. He preserved all ‘Qanuns’ that is to say, all rules and practices and furnished information as to procedure, precedents and land history of the past. He used to dispose of petty cases connected with land and land-revenue.

The principal judicial authorities in the district level were, the District Judge, called District Qazi. He exercised appellate power to hear civil and criminal appeals against the decisions of the Qazi's Court in towns, called Qazi-e-Parganah. He also exercised criminal appellate power against the decisions of Police Magistrates at base level called Kotwals. Another noteworthy judicial authority in the district level was District Amalguzar. He heard appeals in revenue cases taken from the jurisdiction of Amin, the Revenue-Umpire and Qanungo, the Registrar of Public Records. In

province-level judiciary, there existed Provincial Governor's Court called Adalat-e- Nizam-e-Subah presided over by the Governor or Subadar. This Court had original, appellate and revisional jurisdiction. The original jurisdiction was for dealing with murder cases while in appellate jurisdiction, it decided appeals preferred from the decisions passed by the court of District Qazi and that of Fauzdar. Appeals from and against the decision by this court prefer to the Emperor's Court as well as to the Court of the Chief Justice at the imperial capital. There was another Court in this level known as the Governor's own court and this court possessed only an original jurisdiction. The Provincial Qazi held a court which was called the Court of Qazi-e-Subah, This court had original as well as appellate jurisdiction. Besides, Provincial Diwan presided over provincial Revenue Court and dealt with revenue appeals against the decision of District Amalguzar.

In the administration of justice within the structure depicted above, Qazis were the judges of the canon law while Adils were the judges of the common law. Mir-i-Adil, was the Lord Justice. Qazi conducted in the trial and stated the law. Mir-i- Adil or Lord Justice passed the judgment whose opinion could override that of his colleague. But as a rule, they conducted the affairs of the court quite harmoniously which has been clearly delineated by V.D. Kulshreshtha in his book titled “Landmarks in Indian Legal and Constitutional History”.

The law which was applied in the administration of justice during the Mughal times was primarily the Holy law as given in the Quran being regarded as fountain-head and first authority of all laws, civil and criminal, and the traditions handed down from the prophet Muhammad (SM) called Sunna which was and is at present day held to be only second to the Quran itself in sanctity. The judges further depended upon the Codes prepared on analogical deduction by the school of Imam Abu Hanifa (Abu Hanifa an Nu'man ibn Thabit, popularly known as Imam Abu Hanifa (A.D. 701 to 795) was the founder of Hanafi School of law. 'He was the first to give prominence to the doctrine of Qiyas or analogical deduction' and 'assigned a distinctive name and prominent position to the principle by which, in Muhammadan jurisprudence, the theory of Law is modified in its application to actual facts, calling it istihsan' 'which bears in many points remarkable resemblance to the doctrines of equity'. He constituted a committee consisting of forty men from among his disciples for the codification of the laws and it 'took thirty years for the Code to be completed, which has been clearly stated by C. F. Abdur Rahim in his Book “Muhammadan Jurisprudence (1958 Edn) P.L.D. Lahore, pp. 25-26”. Most of the Muslims living in Bangladesh belong to Hanafi School) as well as upon the literature of precedent of eminent jurists called Fatwas.

Besides, these sources, there were secular elements which were drawn upon by the judges to guide their opinions. The Ordinances known as "Qanuns" of various emperors were freely applied by the judges in deciding cases. Ancient customs also played an important part in the legal system of the Mughals who always accepted the sanctity of the customs under which the people of the country had been used to live. Apart from this, the judges had scope to make use of the dictum of equity, good conscience and justice i.e. sense of right and wrong. Matters on which no written authorities could be traced were decided by the judges in accordance with their own good conscience and discretion. They had to adjust application of the Holy law, which was of general character, to the individual cases which came up before them from time to time. This adjustment was generally the result of the decision of one man. Judges, therefore, exercised vast discretionary powers in their own spheres, has been clearly spelt out by Rum Proshad Khosla authored the book “Mughal Kingship and Nobility, Reprint, 1976”.

The Mughal Emperor at the imperial capital was the Legislator on those occasions when the nature of the case necessitated the creation of new law or the modification of the old. Royal pronouncements superseded everything else, provided they did not go counter to any express injunction of the Holy law. These pronouncements were based on the Emperor's good sense and power of judgment rather than on any treatise of law. All ordinary rules and regulations depended upon the Royal will for their existence.

The judicial procedure under the Mughals was not a long drawn-out matter as it is at present. The decisions of cases were speedy. Basically, it was an adversary procedure with provision for pleadings, calling of evidence, followed by judgment. The court was, assisted by Mufti who was well-versed in canon and lay law to assist the court. He was in many respects a fore runner of the present day Attorney General. Civil and Criminal laws were partly Muslim laws and partly customs and the royal decrees. Personal laws of Hindus and Muslims were applied in their respective field.

The system of law under the Mughals was effective and worked well for a long time. Its disintegration started when the Emperor's control over the provinces became less effective. The local Zamindars in course of time became powerful and gradually usurped to themselves the function of administration of justice. This was the state of affairs around the last quarter of the Eighteenth Century when in the province of Bengal justice was administered by Nawab, in his absence by the Chancellor of the Exchequer called Diwan, and in the absence of both, by a Deputy.

Earlier, on the last day of the year 1600, Queen Elizabeth I of England gave the East India Company, by the First Charter, a monopoly of eastern trade and the Charter contained the power and authority to make, ordain and constitute such and so many laws, constitutions, orders and ordinances as may be necessary for the good government of the Company and for better administration of their trade and furthermore to impose "such pains, punishments and penalties, by imprisonment of body, or by fines and americaments, or by all or any of them" as might seem requisite and convenient for the observation of such laws, constitutions, orders and ordinances. In this connection it may be referred to Constitutional Documents, Vol. I, Government of Pakistan, Ministry of Law & Parliamentary Affairs (Law Div), at p 9. All these powers were placed on perpetual foundation by a fresh Charter granted by James I, in 1609, which was granted on May 31, 1609. After a few years, in 1613, the Company got permission from the Mughal Emperor to establish its first factory at Surat. The Charter of 1609 was followed by the British Crown's another grant made on the 14th December, 1615, authorising the Company to issue

James I extended the Company's power by authorizing it to punish its servants for offences committed by them on land. This Charter together with the earlier grant placed the Company to the advantage of governing all its servants both on land and high sea what has been clearly stated in the Book “A. Constitutional History of India” authored by Arthur Berriedale Keith 1600-1935 (Methuen's 2nd Edn) at pp 6-7. Its power to exercise judicial authority was enlarged a step further by a Charter of Charles II, in 1661 which was granted on April, 3, 1661. The Charter a landmark in the history of the legal system, granted the Governor-in-Council of the Company the authority to administer English Law in all civil and criminal cases on Company's servants as well as on others who lived in the British settlement in India. A further Charter granted by Charles II, in 1683 (Granted on August 9, 1683.) provided for a court of judicature to be established at such places as the Company might appoint to decide cases according to equity and good conscience or by such means as the Judges should think fit.

In 1698, the Company by the purchase of villages in Bengal acquired the status of Zamindar which carried with it the scope for exercise of civil and criminal jurisdiction [Sir George Claus Rankin, Background to Indian Law, Cambridge University Press. (1946 Edn) at p 1]. Consequently, a Member of Council regularly held Zamindari Court to try civil and criminal cases. Earlier, the Company had constructed a fortified factory at Calcutta (Kolkata) and towards the close of 1699, the settlement in Bengal was declared Presidency. Their fort at Calcutta was named Fort William in honour of King William of England and it became the seat of the Presidency.

By a Charter granted by King George I, on 24th September, 1726, a Court of Record in the name of Mayor's Court and a Court of Record in the nature of a Court of Oyer and Terminer and Gaol Delivery was established in Calcutta. The Mayor's Court was to try all civil cases with authority to frame rules of practice. The Court of  Oyer and Terminer  was constituted for trying all criminal cases (high treason only excepted). Both civil and criminal justice was required to be administered according to English Law. This was how the King's Courts were introduced in India though the King of England had no claim to sovereignty over Indian soil. Establishment of these courts raised the question of jurisdiction over Indians. Accordingly, by a new Charter of George II, issued in 1753, (The Charter dated January 8, 1753.) the Mayor's Court was forbidden to try action between Indians who did not submit to its jurisdiction. Yet, the Charter established a Court of Request in each presidency for prompt decisions in litigations involving small monetary value.

In the year 1756, as the Company refused to move the fortifications it had erected in Calcutta (Fort Wiliam), the Nawab of Bengal, Bihar and Orrisa Serajuddaula captured the town, but in 1757, the Company under the command of Clive defeated Nawab in the battle of Palassy and recaptured it. Thus, the British people grasped the rein of power. De jure recognition followed with the Mughal Emperor's grant to the Company of the Diwani of Bengal, Bihar and Orrisa. The grant of Diwani included not only the right to administer revenue and civil justice, but virtually the Nizamat also i.e., the right to administer criminal justice. In this respect, it may be mentioned that Minutes of Sir Charles Grey C.J" October 2, 1829, Parliamentary Papas, 1831, Vol. VI, p 54.) Now as the British people were required to govern the new land they naturally took over the Mughal system then prevailing, made in it only the most necessary changes and while retaining its old framework, they very slowly added new elements.

The Company exercised within the villages it had acquired judicial power appurtenant to its status of Zamindar, on the usual pattern then prevailing in the country. After the acquisition of Diwani in 1756, the Company introduced Adalat or Court System in 1772. In fact, it was introduced under Bengal Regulation II of 1772 by Warren Hastings after his appointment as Governor in Bengal. The Office of the Governor was styled 'Governor-General in Bengal from 1774 to 1833. The system is known as Adalat System for administration of justice in Mufassil beyond the presidency town of Calcutta and set up two types of Courts in each revenue district. For civil justice, Provincial Civil Court styled as Mufassil Diwani Adalat was established in each Collectorate with a Chief Civil Court with appellate power at Calcutta called Sadar Diwani Adalat. The Collector of the district presided over the Provincial Civil Court or Mufassil Diwani Adalat whose jurisdiction extended to disputes concerning property, inheritance, claims of debts, contract, partnership and marriage. The Collector was assisted by two Law Officers, a Moulvi and a Pandit, who expounded respectively the rules of Muslim or Hindu law applicable to the cases. The Chief Civil Court or Sadar Diwani Adalat at the seat of the Government was presided over by the President with at least two other Members of the Council.

For criminal justice, Provincial Criminal Court styled Mufassil Fauzdari Adalat was also established in each district with a Chief Criminal Court with supervisory power called Sadar Nizamat Adalat. In the Provincial Criminal Courts sat the Qazi and Mufti of the district with two Moulvis to expound the law. These Provincial Criminal Courts were not permitted to pass death sentences and had to transmit the evidence with their opinion to the Sadar Nizamat Adalat for decision. Besides, the proceedings of these criminal courts were supervised by the Sadar Nizamat Adalat, presided over by the Daroga Adalat representing Nawab in his capacity as Supreme Criminal Judge, with the aid of Chief Qazi, Chief Mufti and three Moulvis.

The criminal courts at first administered Muhammedan Law with some variations which had developed in Bengal, but innovations borrowed from English Law were also introduced. In civil courts, Hindus and Muslims were governed by their personal laws in cases dealing with marriage, succession and religious institution; in other matters in default of a statutory rule governing the case, the court applied 'justice, equity and good conscience'.

Soon after the acquisition of Diwani by the East India Company, the question arose whether the Company could alter the criminal law then in force in India. The first interference with the Mohammedan Criminal Law came in 1772 when Warren Hastings changed the existing law regarding dacoity to suppress the robbers and dacoits. It was provided that the dacoits were to be executed in their villages, the villagers were to be fined, and the families of the dacoits were to become the slaves of the State. Warren Hastings in his letter to the Directors dated 10th July, 1773 maintained that the East India Company as the sovereign authority in the country could and should alter the rules of Mohammedan Law. He pointed out, in his letter,

"The Mohammedan Law often obliges the Sovereign to interpose and to prevent the guilty from escaping with impunity and to strike at the root of such disorders as the law may not reach”

Hastings criticised the existing rules of Mohammedan Criminal Law boldly and attempted to introduce reforms in various ways. To regulate the machinery of justice in Bengal, Warren Hastings prepared plans and introduced reforms in 1772, 1774 and 1780 respectively as well as suggested various reforms. 

From 1772 to 1790 though steps were taken to reorganise and improve the machinery of justice no special effort was made to change the Mohammedan Criminal Law. The problem of law and order as well as to improve the defective state of the Mohammedan Law was seriously considered by Lord Cornwallis when he came to India in 1790. Lord Cornwallis, who succeeded Warren Hastings, concentrated his attention towards removing two main defects, namely (a) gross defects in Mohammedan Criminal Law and (b) defects in the constitution of courts.

Lord Cornwalli's reforms in the Mohammedan Criminal Law were introduced on 3rd December, 1790 by a Regulation of the Government of Bengal. The Regulation made the intention of the criminal as the main factor in determining the punishment. The intention was to be determined from the general

circumstances and proper evidence and from the nature of the instrument used in committing crime. To support this reform, Cornwallis proposed that the Doctrine of Yusuf and Mohammad must be the general rule 'in respect of trials for murder'. Abu Hanifa’s doctrine laying emphasis on the instrument of murder was rejected. By another important provision of the Regulation, the discretion left to the next of kin of a murdered person to remit the penalty of death on the murderer, was taken away and it was provided that the law was to take its course upon all persons who were proved guilty for the crime. Cornwallis further maintained,

"Where Mohammedan Criminal Law prescribes amputation of legs and arms or cruel mutilation, we ought to substitute temporary hard labour or fine and imprisonment".

It finds support from section 66 of the Resolution in the proceedings of the Governor- General in Council dated 10th October, 1791. In this respect legislative steps were taken only in 1791.

Reforms were also introduced, by the Regulation of 3rd December, 1790, in the administration of justice in the Foujdari or criminal courts of Bengal, Bihar and Orissa. In 1791 a Regulation was passed which substituted the punishment of fine and hard labour for mutilation and amputation. The next important step was taken in 1792 when a Regulation provided that if the relations of a murdered person refused or neglected to prosecute the accused person, the Courts of Circuit were required to send the record of the cases to the Sadar Nizamat Adalat for passing final orders. In the same year it was also provided that in future the religious tenets of the witnesses were not to be considered as a bar to the conviction of an accused person. The Law Officers of the circuit Courts were required to declare what would have been their fotwa if the witnesses were Muslims and not in the case of Hindus. Accordingly, this provision modified the Muslim Law of Evidence in 1792.

On 1st May, 1793, the Cornwallis Code a body of forty eight enactments-was passed. Regulation IX of 1793 in effect restated the enactments which provided for modification of the Mohammedan Criminal Law during the last three years. Thus, it laid down the general principles on which the administration of criminal justice was to proceed.

In order to make the law certain in 1793 it was also provided that the Regulations made by the Government were to be codified according to the prescribed form and they were to be published and translated in Indian languages. (Regulation XLI of 1793.)

The process of introducing reforms in the Mohammedan Criminal law which began first of all during Warren Hastings' tenure continued till 1832 when the application of Muslim Law as a general law was totally abolished- Various piecemeal reforms which were introduced from 1797 to 1832 in the Mohammedan Criminal Law were as follows:

Regulation XIV of 1797 made certain reforms in the law relating to homicide where the persons were compelled to pay blood-money. The Regulation granted relief to those persons who were not in a position to pay blood-money and were put in prison by setting them free. It further provided that all fines imposed on criminals shall go to the Government and not to private persons. If the fine was not paid, a definite term of imprisonment was fixed for the accused. After the expiry of that fixed period of imprisonment the accused person was released from prison. In cases where the application of Mohammedan Criminal Law led to injustice, the Judges were empowered to recommend mitigation or pardon to the Governor-General-in Council.

Throughout his tenure as Governor-General, Warren Hastings was subject to two pressures, incompatible with each other, as regards the administration of criminal justice. On the one hand, he was obsessed by the feeling that administration of criminal justice was the responsibility of the Nawab and not of the Company which was only the Diwan. On the other hand, he realised that criminal law needed to be drastically reformed. The criminal courts prior to 1772 were in a very decrepit condition. Realising that the government’s interest in the maintenance of law and order could not be ensured without the administration of criminal justice but at the same time maintaining the facade of the Nawab’s presence in this sphere, Warren Hastings had devised certain peripheral steps in 1772 in the area of criminal judicature, viz, leaving administration of criminal justice to the Muslim law officers, he had interposed supervision of English functionaries over them. Whatever the theoretical objections, the practical exigencies of the situation did not permit the government to adopt completely neutral stance towards the administration

of criminal justice. But government’s freedom of action was very limited, or so it thought. Instead of taking over the administration of criminal justice also alone with civil justice, it retained Muslim law officers to decide criminal cases it fought shy of modifying Muslim criminal law even when some of its features were demonstrably not suited to the contemporary society and the notion of justice entertained by the British themselves. The criminal law itself promoted, to some extent, the commission of violent crimes because it provided ways and means of mitigating punishments. Even the British supervision over the administration of criminal justice introduced in 1772, could not be maintained for long. In 1775, the Sadar Nizamat Adalat was removed from Calcutta to Murshidabad and placed under the control and supervision of the Naib Nazim Mohammad Reza Khan. This, however, proved to be an unfortunate step for the administration of criminal justice which was thus cut-off from the

main currents of reform and improvement Reza Khan’s supervision of the criminal judicature did not prove to be effective and efficient and, consequently, administration of criminal justice suffered. It came to be afflicted, with many vices; its condition became very precarious. Criminal Court became instruments of oppression and torture in the hands of unscrupulous officers; innocent persons were punished while the guilty escaped with impunity. There was no machinery for bringing the offenders to book. The criminal judicature ceased to provide any security to life or property of the people. Even though the state of affairs continually deteriorated, the Calcutta government did not give up its policy of non-interference in criminal judicature. Warren Hastings thought of taking only minimal steps to improve matters while keeping intact, as far as possible, the existing structure of criminal judicature to maintain the fiction that the Nizamat still belonged to the Nawab.

During the period from 1781 to 1793, there were certain other noteworthy reforms. Judges of the Mufassil Diwani Adalats were empowered to arrest the offenders and to bring them to the courts for trial and as such they were also designated as Magistrates. It was not for them to try the accused in their own court; rather as Magistrates, they were required to produce the offender for trial in the Mufassil Fauzdari Adalat. For supervision of works of the Magistrates and Provincial Criminal Courts called Mufassil Fauzdari Adalats, a criminal department was set up in Calcutta controlled by an Officer of the Company called Remembrance of Criminal Courts. In 1801, the Sadar Nizamat Adalat and the Sadar Diwani Adalat were united and in 1807, Magistrates' power to award sentence was raised to six months and a fine of two hundred rupees and in 1818, by enlarging these powers the Magistrates were empowered to pass sentence of imprisonment. By Regulation I of 1819, the Judges of the Provincial Courts of Appeal and Provincial Courts of Circuit were divested of their power to try criminal cases and in their place Commissioners of Revenue and Circuit were appointed in each division. Superintendence and control of Police, Magistrates were placed under these officers with the responsibility of conducting sessions. They heard appeals against the orders passed by the Magistrates.

By 1861, it had proceeded far enough to justify the enactment of the Indian High Courts Act, 1861 (The Act was entitled East India (High Courts of Judicature) Act, 1861. (24 & 25 Vic. C 104)) by the British Parliament authorising creation by Letters Patent of High Courts in the several Presidencies in place of respective Supreme Courts and the Sadar Dawani Adalat and Sadar Nizamat Adalat were to be abolished on establishment of the High Courts. Under Letters Patent dated December 28, 1865, issued pursuant to the Indian High Courts Act, 1861, the High Court of Judicature at Fort William (Calcutta) in Bengal was established replacing the Supreme Court and Chief Courts or Sadar Adalatss (Sec. 8 of the Act; The Adalat System was abolished.) The High Court thus established at Calcutta became the successor of the Supreme Court as well as of the Chief Courts or Sadar Adalats and combined in itself the jurisdiction of both set of old courts. All the jurisdictions of the Supreme Court, civil, criminal, admiralty, testamentary, intestate and matrimonial, original and appellate, and the appellate jurisdiction of Sadar Diwani Adalat and Sadar Nizamat Adalat became vested in the High Court at Calcutta, the original jurisdiction being exercisable by the original side of the High Court and the appellate jurisdiction being exercisable by the appellate side thereof (Sec. 9 of the Act). The Calcutta High Court continued to exercise its jurisdiction till partition of India in 1947. After establishment of the High Court in 1865, a regular

Criminal Judicature

When magisterial functions were vested in the collectors, it was understood that every collector in very district would have a deputy who would lighten the work of the collector-magistrate to some extent. But this hope was not fulfilled. Considerations of economy always stood in the way of the government ever doing anything necessary to improve the administration. In most of the districts, no deputy was appointed. The result of this was that the burden on the collector – magistrate was too heavy and he usually neglected his magisterial functions. On the plea that the collectors neglected their magisterial duties, Government – General Lord Auckland in 1837, secured the approval of the Company’s Directors to separate the two offices, and for the eight years following it was effected gradually. But, as small salaries were allowed to the magistrates, the office fell in the hands of junior servants, and its effect on the administration of justice did not prove to be very happy. But eventually the Offices of collector and magistrate were united again in 1859. About this, Keith points out that the demand for union of magisterial powers in the collector was made by Dalhousie in 1854, and Canning in 1857. “This preference for patriarchal rule unquestionably corresponded with the need of the time and received effect after the Mutiny.

After the abortive Indian Revolution of 1857 against the misrule of the East India Company, the Government of India Act, 1858 was passed providing

for taking over the administration of India in the

hand of British Government. The Company’s rule in India came to an end with the proclamation of Queen Victoria in 1858 by which the administration of the Company’s Indian possessions was taken over by the British Government. Charter Act of 1833 made the Governor General of Bengal, Bihar and Orissa, the Governor General of India and Mr. Macaulay (afterwards Lord Macaulay) was appointed as the law member of the Governor General’s Council and the said Council was empowered as the Indian Legislative Council to make laws by passing Acts instead of making Regulations. The First Law commission was constituted with Mr. Macaulay as its chairman in 1835. The second Law commission was appointed in 1853 headed by Sir John Romilly. Third Law Commission in 1861 was also headed by Sir John Romilly for preparing a body of substantive laws for India. Fourth Law Commission was appointed headed by Dr. Whitly Stokes in 1879. On the basis of the recommendation of this commission, the Code of Civil Procedure, 1859, Limitation Act, 1859, Penal Code, 1860 and Code of Criminal Procedure, 1861 were enacted by the Indian Legislative Council.

Above Laws and other laws were enacted with the object of replacing the modified Islamic administration of justice in the Mufassil by the modified English Common Law system. Act XVII 1862, modified Islamic system of administration of justice. This change over made the posts of law officers such as Quazis, Muftis, Moulavis and Pundits redundant and after that those posts were abolished by Act II of 1864. (Kulshrestha).

Fourth Law Commission appointed in 1879 recommended for amendment of some laws and enactment of some new laws. On the recommendation of this commission the present Evidence Act, 1872, the Code of Criminal Procedures 1898, the Code of Civil Procedure 1908 and some other laws were enacted.

THE CRIMINAL PROCEDURE AMENDMENT ACT, 1923

The Criminal Procedure Amendment Act, 1923 made some improvement in this respect. The Europeans British subjects’ right to be tried by the European judges and magistrates was entirely abrogated. The accused persons whether European or Indian were placed practically on an equal footing. The only privilege allowed to the British subjects was that they could be tried with the help of a jury consisting of a majority of Europeans or Americans. A reciprocal right was allowed to the Indians as they could claim jury consisting of a majority of the Indians. Colonial of the British came to an end in August, 1947. Under the provisions of the Indian Independence Act, 1947, British India was divided into India and Pakistan. Eastern part of the Province of Bengal formed the Province of East Pakistan. But unfortunately, within 3(three) years of partition Martial Law was plagued in Pakistan and Rule of Law had been buried and Colonial Rules continued to the people of East Pakistan till independence in 1971. With the coming into operation of the constitution of the Islamic Republic of Pakistan in 1956, the Supreme Court of Pakistan was established in place of the Federal Court as the apex Court of the country. The apex Court was vested with the appellate jurisdiction from the decisions of the High Courts including Dacca High Court. The rule of law enshrined in the constitution was so transitory. In October 1958, Martial Law was promulgated and the constitution was abrogated. In 1962 another constitution was formulated by the Martial Law authorities to the country. This constitution was also abrogated in 1969 on the promulgation of the second Martial Law in the country.

Emergence of Bangladesh

Before stating anything about the judiciary of Bangladesh, it is necessary to know about the judicial system that was in existence in the country

on the emergence of Bangladesh and a pen picture of the same has been given above. Under the provisions of the Legal Frameworks Order, 1970 a general election was held from 7th December 1970 to 17th January, 1971 in Pakistan to form a National Assembly to frame a Constitution of the country and first meeting of the National Assembly called by the President and Chief Martial Law Administrator General Yahiya Khan to be held on 3rd of March 1971 was postponed by him on 1st of March 1971. This triggered off violent protest and non-cooperation movement by the people of the then East Pakistan. On 7th of March, 1971 Bangabandhu Sheikh Mujibur Rahman, leader of the Awami League Party which secured majority seats of the National Assembly (167 out of 300 seats) called for an all-out struggle for achieving complete autonomy of East Pakistan in a mammoth public meeting held in the Dacca Race Course Field (Presently Suhrawardy Uddyan). Thereafter, on the night following 25th of March, 1971 the Armed Forces of Pakistan started armed attack on the Bangalee soldiers, policemen, riflemen and the people. Bangalee soldiers, policemen and riflemen revolted and war of liberation of Bangladesh was started. On 26th of March, 1971 independence of Bangladesh was declared and on 10th of April, 1971 elected representatives of the people of Bangladesh assembled in a meeting at Mujibnagar and issued the Proclamation of Independence confirming the declaration of Independence made by Bangabandhu Sheikh Mujibur Rahman on 26th March, 1971 and declaring and constituting Bangladesh to be a sovereign People’s Republic. The Proclamation declared Bangabandhu Sheikh Mujibur Rahman as the President and Syed Nazrul Islam as the Vice- President of the Republic till framing of the Constitution. Under the said Proclamation the President was to be Supreme Commander of the Armed Forces with authority to exercise all the executive and legislative powers of the Republic including the

power to grant pardon and also to appoint a Prime Minister and other Ministers, to levy taxes and spend money, to summon and adjourn Constituent Assembly and to do all other things necessary and incidental. The Vice-President was authorised to exercise all the powers, duties and responsibilities of the President in his absence. On that very day, the Vice-President Syed Nazrul Islam, in the absence of the President Sheikh Mujibur Rahman who was confined in Pakistan jail, as Acting President promulgated the Laws Continuance Enforcement Order 1971. This Order provided, amongst others,

“......all laws that were in force in Bangladesh on 25th March 1971 shall subject to the Proclamation aforesaid continue to be so in force with such consequential changes as may be necessary on account of the creation of the sovereign independent

State of Bangladesh formed by the will of the people of Bangladesh and that the Government officials-civil, military, judicial and diplomatic who take the oath of allegiance to Bangladesh shall continue in their offices on terms and conditions of service so long enjoyed by them.”

On the 17th day of April 1971 Bangladesh Government in exile was formed with Tajuddin Ahmed as Prime Minister and members of the Cabinet took oath of the office on that day at Mujibnagar.

On the 16th day of December, 1971 the occupation Forces of Pakistan in the territory of Bangladesh had surrendered to the joint command of India and Bangladesh and thus Bangladesh was liberated. Thereafter on 11th January, 1972, the Provisional Constitution Order 1972 was promulgated by the President. The said Order provided for a Constituent Assembly consisting of the members of the National Assembly and Provincial Assembly elected by the People of East Pakistan in the election held in December 1970, and January, 1971. The said Order

also provided for the High Court of Bangladesh consisting of a Chief Justice and other Judges, a Council of Ministers with the Prime Minister as the head and ordained the President to act on the advice of the Prime Minister, and empowered the Cabinet to appoint a President in the event of a vacancy occurring in the office of the President. (Administration of justice in Bangladesh, Justice Kazi Ebadul Hoque).

Debate in the Constituent Assembly regarding the maintenance of Rule of Law:

e½eÜz †kL gywReyi ingvb:

AvR Avgiv †h msweavb †`e, Zv‡Z gvby‡li AwaKv‡ii K_v †jLv _vK‡e, hv‡Z fwel¨‡Z †KD

RbM‡Yi Rvbgvj wb‡q wQwbwgwb †Lj‡Z bv cv‡i| Ggb msweavbB RbM‡Yi Rb¨ †ck Ki‡Z n‡e|

AvR GLv‡b e‡m PviwU ¯— ‡¤¢i Dci wfwË K‡i Avgv‡`i fwel¨r eskai‡`i Rb¨ Ggb msweavb iPbv

Ki‡Z n‡e, hv‡Z Zuviv `ywbqvi mf¨ †`‡ki gvby‡li mvg‡b gv_v DuPz K‡i `uvov‡Z cv‡i|

`jgZ wbwe©‡k‡l mK‡ji m‡½ Av‡jvPbv Kiv n‡e, RbMY‡K hv‡Z Zv‡`i B”Qv Abyhvqx GKUv myôz

msweavb †`Iqv hvq, GB D‡Ï‡k¨ mK‡ji gZvgZ PvBe| GB msweav‡b gvbweK AwaKvi _vK‡e, †h AwaKvi gvbyl wPiRxeb †fvM Ki‡Z cv‡i|

12B A‡±vei, 1972

e½eÜz †kL gywReyi ingvb:

kvmbZš¿ Qvov †Kvb †`k- Zvi A_© nj gvwSwenxb †bŠKv, nvjwenxb †bŠKv| kvmbZ‡š¿ gvby‡li

AwaKvi _vK‡e, kvmbZ‡š¿ gvby‡li AwaKv‡ii m‡½ m‡½ KZ©e¨I _vK‡e| GLv‡b free-

style democracy Pj‡Z cv‡i bv| kvmbZ‡š¿ RbM‡Yi AwaKvi _vK‡e, KZ©e¨I _vK‡e|

Ges hZ`~i m¤¢e, †h kvmbZš¿ †ck Kiv n‡q‡Q, †mUv †h RbM‡Yi Avkv-AvKv•Lvi g~Z© cÖZxK n‡q _vK‡e, †m m¤^‡Ü Avgvi †Kvb m‡›`n †bB|

W. Kvgvj †nv‡mb (AvBb I msm`xq welqvejx Ges msweavb-cÖYqb-gš¿x):

msweavb‡K ejv nq GKUv †`‡ki †gŠwjK AvBb ev m‡e©v”P AvBb| msweavb RbMY‡K †cÖiYv †`‡e

Ges RbM‡Yi AwfcÖvq Abyhvqx mgvR MV‡bi wfwË ms¯’vcb Ki‡e, GUv Avkv Kiv hvq| AvBbMZ

`„wófw½ †_‡K ejv hvq †h, RbMY †h ¶gZvi gvwjK, †mB ¶gZv AvBbm½Zfv‡e cÖ‡qvM Kivi Rb¨ KZK¸‡jv cÖavb A½ msweav‡b cÖwZôv Kiv nq| †h †`‡ki G iKg †gŠwjK AvBb Av‡Q, †m †`‡k

†Kvb e¨w³ ev †Kvb ivóªxq A½ †mB AvB‡bi E‡aŸ© _vK‡Z cv‡i bv| GBRb¨B ejv nq †h, mvsweavwbK miKv‡i e¨w³i kvmb bq, AvB‡bi kvmb cÖewZ©Z nq| wVK GB Kvi‡YB Bsj¨v‡Ûi GK

weL¨vZ wePviK GK me©gq ¶gZvm¤úbœ ivRvi †e-AvBbx wb‡`©k gvb‡Z A¯^xKvi K‡i e‡jwQ‡jb †h,

wZwb ïay Avj−vn& Ges AvB‡bi Aaxb, †Kvb gvby‡li Aaxb bb|

AvB‡bi kvmb wbwðZ Kivi D‡Ï‡k¨ ¯^vaxb wePviwefvM cÖwZôvi e¨ ¯’v Kiv n‡q‡Q| wePviwefv‡Mi kxl©‡`‡k i‡q‡Q mycÖxg †KvU©| mycÖxg †Kv‡U©i `yBwU wefvM _vK‡e| nvB‡KvU© wefvM Ges Avcxj wefvM| GB Avcxj wefvM n‡e †`‡ki P~ovš— Avcx‡ji †¶Î| wbe©vnx wefvM †_‡K wePviwefvM‡K c„_K KiviI e¨e¯’v Kiv n‡q‡Q|

bvMwiK‡`i AwaKvi-i¶vi c~Y© ¶gZv Av`vjZ‡K †`Iqv n‡q‡Q; wKš‘ mgvRZvwš¿K A_©-e¨e¯’v cÖwZôvi Rb¨ cÖ‡qvRbxq e‡j †NvlYv K‡i m¤úwË I e¨emv msµvšÍ †h me AvBb msm` ˆZix Ki‡eb, Av`vjZ †m¸‡jv bvKP Ki‡Z cvi‡eb bv|

PZz_© ˆeVK: 19†k A‡±vei, 1972

ˆmq` bRiæj Bmjvg (wkí-gš¿x; cwil‡`i Dc-†bZv):

gvbbxq ¯úxKvi mv‡ne, MYZ‡š¿i me‡P‡q eo K_v n‡”Q separation of judiciary from the executive, A_©vr AvB‡bi kvmb Ggbfv‡e cÖeZ©b Ki‡Z n‡e, †hb AvBbwefvM cwic~Y©fv‡e wbi‡c¶ _v‡K Ges gh©v`v Ges ¯^vaxbZvi m‡½ Zvi KZ©e¨ cvjb Ki‡Z cv‡i| GB kvmbZ‡š¿ Avgv‡`i AvBbwefvM‡K ïay Avjv`v KivB bq, Zv‡K cwic~Y© gh©v`v †`Iqvi Rb¨ †h e¨e¯’v MÖnY Kiv n‡q‡Q, Zv‡Z AvB‡bi kvmb m¤^‡Ü Avgv‡`i g‡b †Kvb mskq _vKv evÃbxq bq|

Rbve AvmgZ Avjx wkK`vi (Gb. B.-70: cUzqvLvjx-3):

GB kvmbZ‡š¿ Avi GKUv K_v cÖwZdwjZ n‡q‡Q, †hUv e„wUk Avgj †_‡K wQj- wbe©vnx wefvM †_‡K wePviwefvM‡K c„_KxKiY| KviY, A‡bK mgq †`Lv †M‡Q, Zv‡`i h‡_”QvPvi wePvi‡Ki Dci n¯— -

‡¶c K‡i‡Q| D‡jøL Kiv †h‡Z cv‡i †h, †gv‡bg Lv‡bi mgq †Kvb mywePvi wQj bv, †Uwj‡dv‡bi gva¨‡g wePvi nZ| †mB wePviwefvM‡K c„_K Kiv n‡q‡Q| Zv‡Z †`‡ki gvbyl wePvi cv‡e, ru e of

law establish n‡e| G †`k †mvbvi evsjvq cwiYZ n‡e|

Rbve Avjx AvRg:

Avgv‡`i A‡bK w`‡bi GKUv `vex wQj †h, AvBbwefvM‡K wbe©vnx wefvM †_‡K Avjv`v Ki‡Z n‡e,

hv‡Z K‡i wePviKiv c¶cvZk~b¨ n‡q wePvi Ki‡Z cv‡ib Ges wbe©vnx-wefv‡Mi hw` †Kvb Ab¨vq

nq, Zvi cÖwZKvi hv‡Z n‡Z cv‡i, Zvi e¨e¯’v GB we‡ji g‡a¨ Av‡Q| MYZš¿‡K iÿv Kivi Rb¨

Ges MYZvwš¿K c×wZ‡K Kv‡qg Kivi Rb¨ me©cÖKvi †Póv GLv‡b Kiv n‡q‡Q|

cÂg ˆeVK: 20†k A‡±vei, 1972

Rbve Gg. gbmyi Avjx (†hvMv‡hvM gš¿x):

Kv‡RB MYZš¿ ïay cÖwZôvi Rb¨ bq- MYZš¿ msi¶Y Kiv Ges Gi c~Y© weKv‡ki Rb¨ e¨e¯’v Aej¤^b

Kiv n‡q‡Q| MYZš¿ hv‡Z c~Y© weKvk jvf Ki‡Z cv‡i, †mRb¨ A B‡bi kvmb cÖeZ©b Kiv n‡q‡Q| AvB‡bi kvmb hv‡Z weKvk jvf Ki‡Z cv‡i, †mRb¨ wePviwefvM‡K kvmbwefvM n‡Z c„_K Kiv n‡q‡Q Ges Av`vj‡Zi wePviK hv‡Z mg¯Í cÖfve †_‡K Ges fq, fxwZ, †jv‡fi D‡aŸ© †_‡K AvB‡bi

kvmb Kv‡qg Ki‡Z cv‡ib, †mRb¨ wePvi‡Ki wb‡qvM Ges wePvi‡Ki AcmviY m¤^‡Ü we‡kl wewa-

e¨e¯’vi K_v wjwce× Kiv n‡q‡Q|

mßg ˆeVK: 23†k A‡±vei, 1972

†Lv›`Kvi Ave`yj nvwdR (Gb. B.-49: h‡kvi-7):

Avgv‡`i †`‡k †h msweavb n‡q‡Q, Zvi c~‡e© Avgiv eûevi eû mvsweavwbK e¨e¯’v cÖewZ©Z n‡Z †`‡LwQ| 1935 mv‡j fviZxq AvBb cvk Kivi ci †_‡K ZrKvjxb mg¯Í fviZe‡l© GKUv Av‡›`vj‡bi m„wó n‡qwQj †h, wePviwefvM‡K wbe©vnx wefvM †_‡K c„_K Ki‡Z n‡e| G †`‡k eû

AvBbRxex, eû gbxlx, mg¯— QvÎ-mgvR cÖwZev‡` gyLi n‡q D‡VwQj †h, wePviwefvM‡K wbe©vnx wefvM

†_‡K m¤ú~Y©fv‡e c„_K Ki‡Z n‡e| Avgiv ZLb ï‡bwQ, wKš‘ Zviv wKQyB Ki‡Z cv‡iwb| Avi AvR

hLb Avgiv wb‡RivB msweavb ˆZix Ki‡Z hvw”Q, ZLbB Avgiv †Póv K‡iwQ evsjv‡`‡ki msweav‡bi g‡a¨ wePviwefvM‡K executive body †_‡K m¤ú~Y©iƒ‡c Avjv`v Kivi Rb¨|

m¨vi, G m¤ú‡K© `yBUv D`vniY Avwg w`‡Z PvB| Avgv‡`i msweav‡bi 22 Ges 116          Aby‡”Q`| 22 Aby‡”Q‡`i Aš— M©Z †gŠwjK AwaKv‡i ejv n‡q‡Q †h, wePviwefv‡Mi c„_KxKiY ivóª wbwðZ Ki‡eb| Avi, hv‡Z †Kvbw`b †Kvb gvby‡li g‡b m‡›`‡ni m„wó bv nq, †mB Rb¨ 116      Aby‡”Q‡` ejv n‡q‡Q, evsjv‡`‡ki mycÖxg †Kv‡U©i Aax‡b nvB‡KvU© _vK‡e| nvB‡Kv‡U© wbhy³ e¨w³‡`i

Ges wePviwefvMxq `vwqZ¡cvj‡b iZ g¨vwR‡÷ªU‡`i wbqš¿Y, Kg©¯’j-wba©viY, c‡`vbœwZ`vb I QywU- gÄyixmn mKj welq I k„•Ljv mycÖxg †Kv‡U©i Dci b¨¯— _vK‡e| myZivs GLv‡b GUv cwi®‹vi n‡q wM‡q‡Q †h, evsjv‡`‡k ¯^vaxbZvi gvÎ `k gvm c‡i †h GKUv msweavb †`Iqv n‡”Q, Zv‡Z cwi®‹vifv‡e wjwce× Kiv n‡q‡Q †h, wePviwefvM wbe©vnx wefvM †_‡K GB msweavb Kvh©Ki nIqvi

ci †_‡K m¤ú~Y© c„_K n‡q hv‡e| myZivs, G e¨vcv‡i Avi †Kvb m‡›`n _v ‡Z cv‡i bv|

Rbve †gvt ûgvq~b Lvwj` (Gb. B.-73: Uv½vBj-3):

GB msweav‡b AvBbwefvM I kvmb wefvM‡K GB cÖ_g Avjv`v Kiv nj Ges Avjv`v K‡i RbM‡Yi mwZ¨Kv‡ii b¨vqwePv‡ii e¨e¯’v Kiv nj|

Aóg ˆeVK: 24†k A‡±vei, 1972

Rbve Ave`yj gv‡jK DwKj:

AvBqye Lvb 1962 mv‡j †h msweavb K‡iwQj, Zvi A‡bK K_v eZ©gvb msweav‡b Av‡Q| Avwg Zv

gvwb| †hgb †mLv‡b nvB‡KvU© wQj GLv‡bI nvB‡Kv‡U©i K_v A ‡Q| Z‡e Avwg Zuv‡K ej‡Z PvB †h, H nvB‡KvU© Ges GLvbKvi D‡j−wLZ nvB‡Kv‡U©i g‡a¨ Zdvr Av‡Q| AvBqy‡ei nvB‡Kv‡U©i g‡a¨ hv wQj bv equality before law, Zv GLv‡b Av‡Q| AvBqy‡ei WvB‡iK&wUf wcÖwÝcj hv wQj, Avgv‡`i wcÖwÝc‡ji m‡½ Zvi wgj bvB|

eyaevi, 25†k A‡±vei, 1972 Rbve AvQv`y¾gvb Lvb (Gb. B-90: gqgbwmsn-15):

AviI GKwU D`vniY w`‡Z wM‡q ejv hvq †h, 22 Aby‡”Q‡` g~jbxwZ wnmv‡e Avgiv MÖnY K‡iwQ †h,

Òiv‡óªi wbe©vnx A½mg~n nB‡Z wePvi-wefv‡Mi c„_KxKiY ivóª wbwðZ Kwi‡eb|Ó

wePvi-wefvM‡K m¤ú~Y©fv‡e wbe©vnx wefvM †_‡K GB msweav‡bB c„_ Kiv n‡q‡Q|

e„n¯úwZevi, 26†k A‡±vei, 1972

Rbve †gvt AvwRRyi ingvb:

AvB‡bi cÖwZ kª×v _vKv `iKvi| Avgiv g‡b Kwi, Avgiv gvbyl‡K ewj, Ômevi Dc‡i gvbyl mZ¨, Zvnvi Dc‡i bvBÕ| AvB‡bi Øviv kvmb n‡e| wePvi wefvM c„_K n‡q †Mj| eûw`‡bi Avkv, wbe©vnx wefvM wePvi-wefvM †_‡K c„_K n‡e Ges Zv c„_K nj| †mUvq Av‡Q cÖavbgš¿xi K_v| hw` †KD fyj

K‡i †f‡e _v‡Kb †h, e½eÜz n‡eb cÖavbgš¿x Ges wW‡±Uiwkc Pvwj q hv‡eb, Zvn‡j wZwb Ab¨vq Ki‡eb| wZwb Zuvi †mœncyó AvIqvgx jxM‡K e‡j‡Qb, †Zvgiv Ggb AvBb K‡i `vI, hv‡Z Avwg

†hgb fvwe, †mfv‡e n‡e- GUv mZ¨ bq|

GKv`k ˆeVK: 27†k A‡±vei, 1972

Rbve Gg. kvgmyj nK:

GLv‡b hv‡Z AvB‡bi kvmb cÖwZwôZ nq, Zvi Rb¨ wbe©vnx wefvM‡K wePvi-wefvM †_‡K c„_K Kiv n‡q‡Q| hv‡Z G †`‡k AvB‡bi kvmb cÖwZwôZ nq Ges huviv wePviK, Zu iv hv‡Z me iKg †jvf- jvjmvi E‡aŸ© †_‡K b¨vq I Av`‡k©i cÖwZôv Ki‡Z cv‡ib, Zvi Rb¨ GLv‡b wewa-e¨e¯’v MÖnY Kiv n‡q‡Q|

Rbve gxi †nv‡mb †PŠayix, G¨vW‡fv‡KU:

Avgv‡`i GB kvmbZ‡š¿ †h †gŠwjK AwaKvi †`Iqv n‡q‡Q, Zv‡Z D‡jøL i‡q‡Q †h, GB †`‡k

AvB‡bi kvmb n‡e Ges AvB‡bi †Pv‡L mevB mgvb| Avwg wek¦vm K i, AvB‡bi cÖwZ kª×v‡eva _vK‡j msweavb my›`i n‡Z cv‡i| AvB‡bi cÖwZ kª×v _vK‡j †mB †`kI my›`i nq|

GB msweav‡b ÔRywWwmqvwiÕ‡K ÔGKwRwKDwUfÕ †_‡K Avjv`v K‡i †`Iqv n‡q‡Q, †hb GB e¨e¯’vi

gva¨‡g †h †Kvb †jvK Ab¨v‡qi cÖwZKvi †c‡Z cv‡ib| GB †h msweav‡b ÔRywWwmqvwiÕ‡K Avjv`v K‡i †`Iqv n‡q‡Q, Zv‡Z A‡b‡Ki g‡Z GB msweavb A‡bK fvj n‡q‡Q|

Rbve Avn&mvb Djøvn& (wc. B.-73: Kzwóqv-3):

wePvi-wefvM m¤^‡Ü ejv n‡q‡Q wePviK Kx fv‡e wb‡qvM Kiv n‡e, Kx Zuvi KvR n‡e| kvmbZ‡š¿ G

me welq wbw`©ó K‡i †`Iqv n‡q‡Q| G fv‡e cÖwZwU wefvM m¤^‡Ü GB kvmbZ‡š¿ mywbw`ó Kg©cš’v wba©viY K‡i †`Iqv n‡q‡Q|

KvRx mvnveywÏb (wc. B.-196: XvKv-26):

Avwg GB msweav‡bi AviI `y-GKwU ˆewk‡ó¨i K_v eje| Zvi g‡a¨ GKwU n‡”Q GB †h, `xN© cuwPk

eQi hver ÔGK&wRwKDwUfÕ Ges ÔRywWwmqvixÕ‡K c„_K Kiv m¤¢e nqwb| hvi Kzdj weMZ cuwPk eQi Avgv‡`i fyM‡Z n‡q‡Q| Avgiv- AvBbRxexiv- wewfbœ mg‡q wePvi-wefvM‡K kvmb-wefvM n‡Z c„_K

Kivi Rb¨ †Rviv‡jv `vex DÌvcb K‡iwQjvg| ˆ¯^ivPvix kvmbAvg‡j Avgv‡`i `vex ïay `vexB i‡q

†Mj| AvR Avgiv †h msweavb w`‡Z hvw”Q, †mB msweav‡b wePvi-wefvM‡K kvmb-wefvM †_‡K c„_K Kivi e¨e¯’v i‡q‡Q| GUv Avgv‡`i Rb¨ AZ¨šÍ Avb‡›`i welq|

†mvgevi, 30†k A‡±vei, 1972

Rbve ZvRDÏxb Avng` (A_© I cwiKíbvcÖYqb-gš¿x):

GKUv AwZwi³ K_v ms‡hvRb Kiv n‡q‡Q †h, Av`vjZ GB msweav‡bi †Kvb avivi e¨vL¨v Ki‡Z wM‡q hw` AvB‡bi k~b¨Zv †`‡Lb, Zvn‡j e¨vL¨v w`‡q †mB k~b¨Zv c~iY Ki‡eb| †mB e¨vL¨v w`‡Z wM‡q Av`vjZ †h wb‡`©k †`‡eb, Zv Kvh©Ki n‡e Ges Av`vj‡Zi †m iKg ¶gZv _vK‡e| Zvi Rb¨

Avgiv e¨e¯’v †i‡LwQ| AvB‡bi e¨vL¨vq, RR mv‡ne †h iKg Dchy³ we‡ePbv Ki‡eb, †mB iKg ivq

w`‡Z cvi‡eb|

Avgiv GKUv AvBb K‡iwQ, †h AvBb e‡j Rwg RvZxqKiY Kiv hv‡e, wkí-KviLvbv RvZxqKiY

Kiv hv‡e| Avgv‡`i GB e¨e¯’vi d‡j hw` †Kvb †¶‡Î †h D‡Ï‡k¨ AvBbwU cÖYxZ n‡q‡Q, †mB D‡Ïk¨ e¨vnZ nq wKsev Rbmvavi‡Yi ¯^v‡_©i ¶wZ nq, Zvn‡j AvR‡K huviv AvBbwUi mgv‡jvPbv Ki‡Qb ev we‡ivwaZv Ki‡Qb, RR mv‡ne Zuv‡`i mc‡¶ ivq w`‡j Avgv‡`i wKQyB KiYxq _vK‡e bv Avevi GB msweavb ms‡kvab Kiv Qvov| ZvB GB msweav‡b e¨e¯’v ivL n‡q‡Q †h, AvB‡bi e¨vL¨v †`evi mgq RR mv‡ne‡K GB †h g~jbxwZ †`Iqv n‡q‡Q, Zv‡K mvg‡b †i‡L Zvi mc‡¶ ivq w`‡Z

n‡e- Zvi wecixZ †Kvb ivq †`Iqv hv‡e bv- hw`I k~b¨Zvi †¶‡Î wecixZ ivq w`‡Z cvi‡Zb|

Kv‡RB Avgv‡`i GB msweav‡b AwZwi³ my›`i GKwU e¨e¯’v ms‡hvwRZ n‡q‡Q| RR mv‡ne

GB msweavb Abyhvqx kc_ MÖnY Ki‡eb| GB msweavb‡K mvg‡b †i‡L wZwb wm×vš— MÖnY Ki‡eb| cÖ‡Z¨K gvbyl, cÖ‡Z¨K Kg©Pvix- Zv wZwb RR mv‡ne †nvb ev †hB †nvb- GB msweavb‡K m‡e©v‡”P Zz‡j ai‡eb| hw` GB msweavb †KD j•Nb K‡ib ev †mB ai‡bi Avk¼v _v‡K, Zvn‡j †mB cwiw¯’wZ †gvKv‡ejvi Rb¨ wewfbœ Dcv‡q cÖ¯‘Z _vK‡Z n‡e|

Rbve wmivRyj nK, G¨vW‡fv‡KU (Gb. B.-134: Kzwgjøv-4):

†h ÔRywWwmqvj wm‡÷gÕ Avgiv w`‡qwQ, Avwg M‡e©i m‡½ ej‡Z cvwi, eÜzivóª fviZel©I GLb ch©š— Zv w`‡Z cv‡iwb| †Kbbv, fviZe‡l© GLbI ÔRywWwmqvwiÕ‡K m¤ú~Y© c„_K Kiv m¤¢e nqwb| Avi, Avgiv †Póv K‡iwQ, Avjv`v Kivi| ïay nvB‡KvU© bq, mycÖxg †KvU© bq- Avgv‡`i wbgœZg ÔRywWwmqvwiÕ‡KI ÔGw·wKDwUfÕ †_‡K Avjv`v Kievi Rb¨ Avgv‡`i msweav‡b e¨e¯’v K‡iwQ| myZivs Awf‡hvM mZ¨ bq|

Rbve Ave`yj gyšÍvKxg †PŠayix (Gb. B.-124: wm‡jU-5):

GB msweav‡b Avgiv 22 Aby‡”Q‡`i gva¨‡g wbe©vnx wefvM †_‡K wePvi-wefvM‡K c„_K K‡iwQ| Avgv‡`i cÖwZ‡ekx-ivóª fviZ 235 Aby‡”Q‡`i gva¨‡g GUv Ki‡Z †P‡q‡Q; wKš‘ mywbw`©ófv‡e Zv Ki‡Z cv‡iwb| ïay fwel¨‡Zi Rb¨ GKUv e¨e¯’v †i‡L‡Q| wKš‘ Avgiv AvR‡K GUv‡K m¤ú~Y©iƒ‡c c„_K K‡i w`‡qwQ|

Rbve Ave`yj gwgb ZvjyK`vi:

Rbve ¯úxKvi mv‡ne, GB MYZš¿ ev msm`xq MYZ‡š¿ GKUv wRwbl Av‡Q Ôi“ j Ae& jÕ ev AvB‡bi kvmb| AvB‡bi †Pv‡L cÖ‡Z¨K gvbyl mgvb, cÖ‡Z¨K bvMwiK mgvb, cÖ‡Z¨K bvMwi‡Ki mgvb AwaKvi- Zv wZwb cÖavbgš¿xB †nvb ev GKRb K…lK, gy‡U, gRyi ev †g_i| AvB‡bi †Pv‡L mevB

mgvb| GB Ôi“ j Ae& jÕ ev AvB‡bi kvmb mK‡ji Rb¨|

Rbve †gvt Ave`yj AvwRR †PŠayix:

ZvQvov, 35 b¤^i Aby‡”Q‡` †Mvc‡b wePvi Kivi e¨e¯’v ivL n‡q‡Q| Gi d‡j msweav‡b †h      †gŠwjK AwaKviUzKz †`Iqv n‡qwQj, Zv Avi _vKj bv| †Mvc‡b wePviKvh© cwiPvjbv Kivi kZ© Av‡ivc K‡i †`Iqv‡Z cÖKvk¨ wePvi cvIqvi AwaKvi niY Kiv nj| GB e¨e¯’v Rbg‡Zi cÖwZdjb

bq wbðqB|

ïay †cÖwm‡W‡›Ui 9 b¤^i Av‡`kB bq- †mB m‡½ msweav‡bi 135 b¤^i Aby‡”Q‡`i gva¨‡gI †gŠwjK AwaKvi Le© Kiv n‡q‡Q| Zuv‡`i e¨vcv‡i M„nxZ †h †Kvb e¨e¯’vi wei“ ‡× wePvi cvIqvi AwaKvi Av`vj‡Zi gva¨‡g cÖwZwôZ Kivi my‡hvM bvB Ges †m m¤ú‡K© AvBbMZ gxgvsmv Kivi †Kvb e¨e¯’vI bvB GB msweav‡b| G‡Z K‡i ¯^vfvweKfv‡eB miKvix PvKzwiqv‡`i g‡b †¶vf m„wó n‡q‡Q|

W. Kvgvj †nv‡mb (AvBb I msm`xq welqvejx Ges msweavb-cÖYqb-gš¿x):

Avgv‡`i msweav‡bi †gŠwjK AwaKv‡ii fvMwU hw` †KD we‡ePbv K‡i †`‡Lb, Zvn‡j †evSv

hv‡e †h, Avgiv GB wØZxq e¨e¯’vwU‡K †gŠwjK AwaKv‡ii †¶‡Î Kv‡Q jvwM‡qwQ| AvB‡bi hyw³m½Z evavwb‡la Av‡ivc Kivi GKUv weavb i‡q‡Q| hyw³m½Z nj wK nj bv, †mUv wePvi Kivi GLwZqvi mycÖxg †Kv‡U©i| GB AwaKvi my¯úó, mywbwðZ| msm`& GUv Le© Ki‡Z cvi‡eb bv| Zuviv †Kej wePvi

K‡i †`L‡eb| cÖ‡Z¨K AwaKv‡ii e¨vcv‡i GB weavb Kiv n‡q‡Q|

wePvi-wefv‡Mi ¯^vaxbZv wbwðZ Kivi Rb¨ Avgiv we‡kl mZK©Zv Aej¤^b K‡iwQ| msweav‡b mycÖxg †KvU© m¤ú‡K© †h weavb ivLv n‡q‡Q, †m m¤ú‡K© †KD †KD ckœ ÖZz‡j‡Qb †h, GKUv nvB‡KvU© Avi GKUv mycÖxg †KvU© Kiv nj bv †Kb|

Avgv‡`i msweav‡bi 94 Aby‡”Q‡` weavb K‡iwQ †h, mycÖxg †Kv‡U©i `ywU wefvM _vK‡e| GKUv nj Avcxj wefvM, Avi GKUv nvB‡KvU© wefvM| GB `yBwUi MVb m¤ú~Y© Avjv`v| †h wePvicwZ GK wefv‡M em‡eb, wZwb Ab¨ wefv‡M em‡Z cvi‡eb bv|

Z‡e `y‡Uv wefvM‡K GKB mycÖxg †Kv‡U©i A½ K‡i ivLvi D‡Ïk¨ nj †h, `y‡UvB †`‡ki m‡e©v”P Av`vj‡Zi mgvb gh©v`v cv‡e| A‡bK GKK ev BDwbUvix iv‡óª m‡e©v”P Av`vj‡Zi `y‡Uv A½ _v‡K| GKUv nj Ô†dWvivj G¨v‡c‡jU †KvU©Õ Avi GKUv ÔnvB‡q÷ AwiwRbvj RywWwmqvjÕ| †Kbbv, `y‡Uv‡K c„_K Ki‡j, `y‡Uv‡K Avjv`v Ki‡j A_©vr GKUv nvB‡KvU© Ges Gi G Uv mycÖxg †KvU© ivL‡j mycÖxg †KvU©B m‡e©v”P Av`vjZ n‡q hv‡e| †m †¶‡Î nvB‡Kv‡U©i gh©v`v Kwg‡q w`‡Z nq Ges †mUv wØZxq ¯Z‡i P‡j hvq|

Avgv‡`i †h `„wóf½x †_‡K Avgiv GB wel‡q wm×všÍ wb‡qwQ, †mUv nj †h, kZKiv 90 fvM

†jv‡Ki Rb¨ nvB‡KvU©B †kl Av`vjZ Ges nvB‡KvU©‡K we‡kl AwaKvi †`Iqv n‡q‡Q †gŠwjK AwaKvi i¶v Kivi e¨vcv‡i|

44 Ges 102 Aby‡”Q` †`L‡j †evSv hv‡e †h, †gŠwjK AwaKvi i¶v Kivi †h we‡kl ¶gZv

†`Iqv n‡q‡Q, †mUv Av‡M nvB‡Kv‡U©iB wQj Ges †mUv GLbI nvB‡KvU© wWwfk‡biB _vK‡e|

†dWvivj ivóª GKUv mycÖxg †KvU© Qvov _vK‡Z cv‡i bv| cv uPwU cÖ `‡k cuvPwU nvB‡KvU© _vK‡j GKwU mycÖxg †KvU© _vK‡Z nq Zv‡`i KvQ †_‡K Avcxj †bIqvi Rb¨ wKš‘ ÔBDwbUvixÕ iv‡óª m‡e©v”P Av`vjZ‡K GBfv‡e `yB fv‡M wewf³ Ki‡j †h nvB‡KvU© _v‡K, Zv‡K wØZxq ¯— ‡i wb‡q Avmv nq Ges †mLv‡b kZKiv 90 fvM †jvK hvq, Zvi gh©v`v Kwg‡q †`Iqv nq|

GB `„wóf½x †_‡K Avgiv welqwU‡K †`‡LwQjvg| Avgiv mô yz wePv‡i D‡Ï‡k¨ G e¨e¯’v K‡iwQ| KviY, Avgiv Rvwb, Avcxj wefv‡M kZKiv 5Uv †Km& hvq bv Ges nvB‡KvU© wefv‡M kZKiv 90Uv †Km& hvq|

†gŠwjK AwaKvi i¶v Kivi Rb¨ †h ÔixU wcwUkbÕ n‡e, †mUv Ôix‡UÕi GLwZqv‡i †`Iqv n‡q‡Q| G¸wj‡K w`‡q Avgiv mycÖxg †Kv‡U©i GKUv weavb K‡iwQ| Avgiv wek¦vm Kwi †h, †KvU©‡K †gŠwjK AwaKvi i¶vi †h ¶gZv, †h GLwZqvi †`Iqv n‡q‡Q, †mUv m‡e©v”P Av`vj‡Zi GKUv A½ wnmv‡e ivLv DwPZ|

  †KD †KD e‡j‡Qb, K‡qKUv jvwZb kã Avgiv †Kb e¨envi Kwiwb- †hgb: Mandamus, habeas-corpus, quo warranto, certiorary? huviv GUv e‡j‡Qb,

Zuv‡`i ejvi D‡Ïk¨ nj †hb Avgiv †Kvb wKQy ev` w`‡qwQ|

wKš‘ 102 Aby‡”Q` hw` †KD we‡ePbv K‡i †`‡Lb A_©vr GLv‡b †h GLwZqvi †`Iqv n‡q‡Q nvB‡Kv‡U© wefvM‡K, Zv hw` GK GKUv K‡i †KD †`‡Lb, Zvn‡j wZwb eyS‡Z cvi‡eb †h, Gi meB

†`Iqv n‡q‡Q|

†hgb, Ôg¨v‡Ûgv‡mÕi †h Ô†¯‹vcÕ, Zvi Rb¨ Avgv‡`i msweav‡b GKUv Dc`dv Av‡Q| ÔmvwU©IivwiÕi †h Ô†¯‹vcÕ, Zvi Rb¨ GKUv Dc`dv Av‡Q| †Zgwb ÔKzI Iqviv‡›UvÕi †h Ô†¯‹vcÕ, Zvi Rb¨I Avgv‡`i GKUv Dc`dv Av‡Q| †nweqvm-Kc©v‡mi Rb¨ GKUv Dc`dv Av‡Q| ÔcÖwnwek‡bÕi Dci GKUv Dc`dv Av‡Q|

Avgiv †Kvb RvqMvq jvwZb kã e¨envi Kwiwb| jvwZb kã e¨envi Kiv †hZ| wKš‘ Avgiv      †`‡LwQ, jvwZb kã e¨env‡i wKQy Amyweav Av‡Q| †mUv nj, jvwZb k‡ãi †cQ‡b GKUv BwZnvm Av‡Q †mUv AZ¨šÍ Ô†UKwbK¨vjÕ-ai‡bi Ges eû RwUj wewa-weavb Zvi m‡½ RwoZ| GB Ô†UKwbKvwjwUÕi Rb¨ G¸wj GLv‡b †`Iqv nqwb| G¸wj A‡bKUv Avgiv †m‡i wb‡qwQ|

Z‡e †`Lv hvq †h, ÔmvwU©IivwiÕi †h BwZnvm, †mUv wePviwefvMxq Ges Avav- wePviwefvMxq UªvBey¨bv‡ji g‡a¨ mxgve×|

Avgiv 102 Aby‡”Q‡` †hfv‡e wj‡LwQ, †mB Abyhvqx hw` †Kvb KZ©„c¶ ev e¨w³- whwb miKvix ¶gZv cÖ‡qvM K‡ib- ÔRywim&wWKk‡bi evB‡i wKQy K‡ib Ges †mRb¨ †KD ¶wZMÖ¯’ nb, Zvn‡j D³ ms¶zä e¨w³ nvB‡Kv‡U© Avcxj Ki‡j nvB‡Kv‡U© mswk−ó KZ©„c¶ ev e¨w³‡K wb‡`©k w`‡Z cvi‡eb|

GB e¨e¯’v MÖnY bv K‡i Avgiv hw` GKUv jvwZb kã ivLZvg, Zvn‡j †mB cwigv‡Y nvB‡Kv‡U©i ¶gZv mxgve× Kiv nZ|

Avgvi GKRb AvBbRxex-eÜz e‡jwQ‡jb, jvwZb kã fvj †kvbvq, G¸wj ivL‡jb bv †Kb? Avwg

ejjvg, †Kvb †Kvb †Km& jvwZb kã w`‡q ÔKfviÕ nq e‡U, wKš‘ Zv‡Z nvB‡Kv‡U©i ¶gZv mxgve× n‡q hvq| Avevi Ggb †Km&I i‡q‡Q, hv †Kej jvwZb kã ewm‡q w`‡jB ÔKfviÕ nq bv| †hgb,

†Kvb cÖkvmwbK ms¯’vi wei“ ‡× ÔmvwU©IivwiÕ P‡j bv| ZLb wZwb Aek¨ ¯^xKvi Ki‡jb †h, jvwZb kã e¨envi Ki‡j Av`vj‡Zi AvIZv mxgve× n‡q hvq|

†Zgwb Avgiv AviI †`‡LwQ †h, Ô†nweqvm-Kc©vm&Õ kã MÖnY Ki‡j wVK †mB wRwbl nq bv, hv Avgiv PvB| †Kbbv, †mLv‡b Ô†nwiqvm-Kc©vm&Õ w`‡j Av`vj‡Zi hZUzKz GLwZqvi, GB k‡ãi e¨vL¨v

Zvi †P‡q A‡bK e¨vcK, AvIZv A‡bK cÖmvwiZ| Zvici Ô†nweqvm-Kc©vm&Õ- GB jvwZb kã e¨envi Ki‡j nvB‡KvU© †K wKQz Kg GLwZqvi †`Iqv nq| Zvi e`‡j Avgiv †hUv w`‡qwQ, Zv‡Z nvB‡KvU©‡K AviI †ekx GLwZqvi †`Iqv n‡q‡Q|

Avi GKUv e¨e¯’v Avgiv K‡iwQ| †mUv nj, †Kvb c¶ GKm‡½ wZb-Pvi ai‡bi gvgjvi AvIZvq

Avm‡e bv| †m¸wj nj, Avgiv we‡klfv‡e †h me wkí-cÖwZôvb RvZxqKiY K‡iwQ †m¸wj; PvKix m¤úK©xq gvgjv; miKvix Kg©Pvix‡`i gvgjv; Ges miKv‡ii Dci b¨¯Í cwiZ¨³ m¤úwË m¤úK©xq

gvgjv| Zvi KviY, Ôix‡UÕi AvIZv wKQzUv †ekx `iKvi| Ôix‡UÕ NUbvi Dci wbf©i K‡i wePvi Kiv

hvq bv- ïay AvBb wb‡q wePvi nq|

A‡bK MYZvwš¿K †`‡k mvwf©mg~n‡K nvB‡Kv‡U©i GLwZqv‡i †`Iqv nq bv| Avgv‡`i eÜz-ivóª

fvi‡ZI GB wbqg| G¸wj nvB‡Kv‡U© wb‡j mywePvi nq bv| Kvib, G¸wj AZ¨š— LuywUbvwU e¨vcvi Ges Avmj †h Awf‡hvM, Zvi †mLv‡b wePvi nq bv| A‡bK †`‡k ZvB mvwf©‡mi Rb¨ Avjv`v UªvBey¨bvj Av‡Q| Zuviv G wel‡qi wePvi K‡i _v‡Kb| Zuviv Gi Ô†UKwbKvjÕ w` & †`‡L we¯— vwiZ NUbvi wePvi Ki‡Z cv‡ib| GB mg¯Í UªvBey¨bvj †_‡K Zuviv mywePv‡ii wbðqZv †c‡q _v‡Kb| nvB‡Kv‡U© GB me e¨vcvi wb‡q ÔixUÕ K‡i Ah_v fxo K‡i †KD mywePvi cvb bv| Avm‡j †h me wel‡qi Rb¨ ÔixUÕ Kiv cÖ‡qvRb, †m¸wj‡K nvB‡Kv‡U©i GLwZqvify³ K‡i evKx¸wj‡K A_©vr PvKix, miKvix m¤úwË RvZxqKi‡Yi welq¸wj‡K cÖkvmwbK UªvBey¨bv‡ji nv‡Z †Q‡o †`Iqv n‡q‡Q| G¸wji weavb 117

Aby‡”Q‡` Kiv n‡q‡Q|

G m¤ú‡K© ejv n‡q‡Q †h, Avgiv GK nv‡Z w`‡q Ab¨ nv‡Z wb‡qwQ| GUv wVK K_v bq| Avgiv

c~Y© ¶gZv nvB‡KvU©‡K w`Bwb- G K_vI wVK bq| nvB‡Kv‡U©i Ôix‡UÕi AvIZv ej‡Z †hUv †evSv‡bv

nq, †mUv nvB‡KvU©‡K †`Iqv n‡q‡Q| †Kej GUvi mxgve×Zvi K_v ejv n‡q‡Q 102 Aby‡”Q‡`i (3)

`dvq|

wePviwefvM m¤^‡Ü Avi GKUv K_v ej‡Z nq| wbe©vnx wefvM †_‡K wePviwefvM‡K c„_K Kivi KvRUv mivmwifv‡e Avgiv K‡i w`‡qwQ| cÖkœ †Zvjv n‡q‡Q †h, Avgiv Zv Kwiwb| wKš‘ Avgiv cÖ_g w`‡K g~jbxwZi g‡a¨ Zv K‡i w`‡qwQ| Zvici, Avevi hw` GKUz Kó K‡i 114 Ges 115 Aby‡”Q`

Zuviv †`‡Lb, Zvn‡j eyS‡Z cvi‡eb †h, GUvi weavb Kiv n‡q‡Q|

`yÕ RvqMvq Kijvg †Kb, G cÖkœ DV‡Z cv‡i| fwel¨‡Z †h AvBb Kiv n‡e, Zv †hb GB weavb

Abymv‡i Kiv nq, †mRb¨ GB e¨e¯’v| Aa¯Íb Av`vjZ Ges †dŠR`vix Av`vj‡Zi g¨vwR‡÷ªU‡`i‡K

Avgiv mycÖxg †Kv‡U©i AvIZvq wb‡q G‡mwQ|

wbe©vnx wefvM †_‡K wePviwefvM‡K c„_K Kivi `vex Avgv‡`i eûw`b Av‡Mi cyi‡bv `vex|

Avgiv AZx‡Z †`‡LwQ, wbe©vnx wefv‡Mi Aax‡b wePviwefvM _vKvi d‡j Kx ‡e Zuv‡`i cÖfvweZ Kiv n‡q‡Q, Kxfv‡e fq †`Lv‡bv n‡q‡Q|

AvBqy‡ei Avg‡j Avgvi g‡b Av‡Q, GKRb †Rjv-RR miKv‡ii weiæ‡× GKUv ÔBbRvskbÕ w`‡qwQ‡jb| †mRb¨ Zuv‡K m›Øx‡c e`jx Kiv nq| Kv‡RB G †`‡ki RvMÖZ RbZv wbe©vnx wefvM †_‡K wePviwefv‡Mi c„_KxKi‡Yi `vex Zz‡j‡Qb|

Kxfv‡e AZx‡Z wePviwefv‡Mi ¯^vaxbZv Le© Kiv n‡q‡Q, Zvi eû bRxi Av‡Q|  †mRb¨

AvBbRxex QvovI G †`‡ki RbmvaviY w`‡bi ci w`b wePviwefvM‡K wbe©vnx wefvM †_‡K c„_K Kivi `vex Rvwb‡q G‡m‡Qb| AvgivB †m `vex K‡iwQ Ges GLb †h‡nZz my‡hvM †c‡qwQ, ZvB †m `vex Avgiv †g‡b wb‡qwQ| `vex-`vIqv AvgivB KiZvg| ZLb A iv `vex-`vIqv †g‡b †bIqvi

my‡hvM cvBwb| GZw`b c‡i Avgiv G me `vex-`vIqv c~iY Kivi my‡hvM †c‡qwQ| Avgvi g‡b nq,

†Kvb-bv-†Kvb m`m¨ Gi Dci GKUv-bv-GKUv cÖ¯Íve cvm K‡i‡Qb| Z B AvR‡K Avgiv †g‡b wbjvg †h, wbe©vnx wefvM †_‡K wePviwefvM‡K c„_K Kiv †nvK|

msweav‡bi 114 Ges 115 Aby‡”Q‡` GUv K‡i †`Iqv n‡q‡Q| Zv m Ë¡I †KD †KD e‡j‡Qb †h

GUv Kiv nqwb| Zuviv ïay g~jbxwZ †`‡L G K_v ej‡Qb| evKxUzKz Zuviv †`‡Lbwb| †mUv QvovI wePviwefv‡Mi cwi‡”Q` †`Lyb| †mLv‡bI Avgiv †m e¨e¯’v K‡i w`‡qwQ|

GLv‡b Avwg ïay GUzKz ej‡Z PvB †h, Kxfv‡e Avgiv GZ Awej‡¤^ GUv Ki‡Z †c‡iwQ, ZvI wePvi Kiv `iKvi| Ab¨vb¨ †`‡k GUv Ki‡Z A‡bK mgq †j‡M‡Q| BwÛqv hLb GUv MÖnY K‡i, ZLb 235 Ges 237 Aby‡”Q‡` GKUv weavb Kiv n‡qwQj g¨vwR‡÷ªU m¤ú‡K©| 1970 mvj ch©bš— ms‡kvwaZ fviZxq msweav‡bi 237 Aby‡”Q`:

ÒApplication of the provisions of this Chapter to certain class or classes of Magistrates.- The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules

made thereunder shall with effect from such dates

as may be fixed by him in that behalf apply in relation to any class or classes of Magistrates in

the States.Ó

235 Aby‡”Q‡` Av‡Q:

ÒControl over subordinate courts.- The control over district courts and courts subordinate thereto

including the posting and promotion of, and the

grant of leave to, persons belonging to the judicial

service of a State and holding any post inferior to

the post of district judge shall be vested in the

High Court.Ó

fvi‡Z Zuviv Aa¯Íb Av`vj‡Zi e¨vcv‡i G K_v e‡j‡Qb| wKš‘ Ôg¨vwR‡÷ªmxÕi e¨vcv‡i Zuviv fwel¨r †Kvb mg‡q e¨e¯’v MÖnY Ki‡eb Ges ZvwiL Rvbv‡eb e‡j D‡j−L K‡i‡Qb|

Avgv‡`i msweav‡b 114 Ges 115 Aby‡”Q‡` cwi®‹vifv‡e ejv Av‡Q †h, Zuviv mycÖxg †Kv‡U©i Aaxb n‡eb, Zuv‡`i wb‡qvM mycÖxg †Kv‡U©i mycvwik-Abyhvqx n‡e| Zuv‡`i e`jx, c‡`vbœwZ, Zuv‡`i weiy‡× k„•Ljvg~jK e¨e¯’v- me wKQz _vK‡e mycÖxg †Kv‡U©i Aaxb| wbe©vnx wefvM †_‡K wePviwefvM‡K

c„_K Kivi weavb Avgiv K‡iwQ|

Rbve ¯úxKvi mv‡ne, cveZ©¨ PÆMÖvg †_‡K wbe©vwPZ gvbbxq m`m¨ †mB GjvKv m¤ú‡K© wKQz cÖkœ Zz‡j‡Qb| wZwb e‡j‡Qb †h, e„wUk I cvwK¯Ívbx Jcwb‡ewkK kvm‡bi mgq †m GjvKvi †h GKUv BwZnvm wQj, msweav‡b Zv D‡jøL Kiv nqwb| Av‡M †m GjvKvi e¨vcv‡i †h we‡kl weavb wQj, G msweav‡b Zv †bB|

Avwg G K_v ¯^xKvi KiwQ, wKš‘ †mB m‡½ Avwg G K_vI ej‡Z PvB †h, Av‡M †m GjvKvi †jvK‡`i‡K Z…Zxq †kªYxi bvMwiK K‡i ivLv n‡qwQj| G m¤‡ ^Ü Avgiv †`L‡Z cvwi fviZ kvmb

AvB‡bi 92 aviv| †m BwZnvm Avgiv msweav‡b wjwLwb| 92 avivq G¸‡jv‡K ÔG·K¬z‡WW GwiqvÕ ejv nZ| Zv‡Z ejv Av‡Q:

“The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area...”

AvB‡bi †Kvb ÔcÖ‡UKkbÕ Zuv‡`i wQj bv| †Kvb AvBb Zuv‡`i m¤ú‡K© Kiv †hZ bv| AviI Av‡Q: “Governor may make regulation for the peace and good government of any area in a Province which is

for the time being an excluded area, or a partially excluded area,...”

ZLb Zuviv msm‡`i AvIZv †_‡K m¤ú~Y© evB‡i wQ‡jb| Zuviv AvB‡bi Avkª‡qi evB‡i wQ‡jb|

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†lvok ˆeVK: 3iv-4Vv b‡f¤^i, 1972

kªxmyiwÄr †mb¸ß:

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Our Founding Fathers dreamt of a society free

from exploitation and oppression. This has been the

core of the entire war of liberation struggle that the nation had to withstand in 1971. This pledge is well depicted in the Proclamation of the Independence dated 10th April, 1971, where it has been unequivocally stated that we are establishing Bangladesh “in order to ensure for the people of Bangladesh equality, human dignity and social justice,” and not to speak our Founding Fathers had to pay the extreme price for that dream. The preamble of our constitution says that “it shall be a fundamental aim of the State to realize through the democratic process a socialist society, free from exploitation a society in which he rule of law, fundamental human rights and freedom, equality and justice, political, economic and social, will be secured for all citizens. In A.T. Mridha v. State 25 DLR 353, Badrul Haider Chowdhury, J. echoed the fundamental aim of this country in the following language: “In order to build up an egalitarian society for which tremendous sacrifice was made by the youth of this country in the national liberation movement, the Constitution emphasizes for building up society free from exploitation of man by man so that people may find the meaning of life. After all, the aim of the Constitution is the aim of human happiness. The Constitution is the supreme law and all laws are to be tested in the touch stone of the Constitution (vide article 7). It is the supreme law because it exists; it exists because the will of the people is reflected in it.”

The sole and noblest purposes of our Founding Fathers were to establish a State where no one will be subjected to any maltreatment and humiliation so that everyone’s fundamental human rights and freedoms and respect for the dignity and worthy of the human person are guaranteed. This is only possible where all powers of the Republic belong to the people and the people only. And all this lofty ideals can only be materialized in a State where rights of the people given through the constitution

and laws are absolutely guaranteed and protected by a free, fair and independent judiciary.  

In the above Parliamentary debates, Bangabandu Sheikh Mujibur Rahman stressed upon the rights of the people to be secured so that our next generation could claim that they are living in a civilized country. He also highlighted the human rights which would be secured to the citizens, meaning thereby on the question of rule of law there cannot be any compromise. The father of the nation hinted that in our constitution, the people’s right with their participation in the affairs of the Republic and their hopes and aspirations would be enshrined. Participating in the debate, Dr. Kamal Hossain, one of the Founding Fathers of the constitution clearly expressed that the fundamental rights of the citizens would get priority; that this constitution would inspire the citizens and all powers of the Republic belong to the people and their exercise on behalf of the people shall be effected only under and by the authority of the constitution. He also assured that the independence of the judiciary shall be protected. Syed Nazrul Islam pointed out that the foremost precondition of Democracy is separation of judiciary from the executive, that is to say, the rule of law should be established in such a way that the judiciary shall be independent in true sense and that the judiciary can perform its responsibilities independently. M/S Asmat Ali Shikder, Ali Azam, M. Monsur Ali, Khandaker Abdul Hafiz, Abdul Malek Ukil, Asaduzzaman Khan, Md. Azizur Rahman, M. Shamsul Hoque, Mir Hossain Chowdhury, Ahsan Ullah, Taj Uddin Ahmed, Sirajaul Huq, Abdul Muttaquim Chowdhury, Abdul Momin Talukder, Md. Abdul Aziz Chowdhury, Suranjit Sen Gupta and Enayet Hossain Khan expressed their opinions in same voice with the above leaders. Their advice, proposals, opinions and aspiration have been reflected in the preamble, article 7 and Part III of the constitution. Therefore, the impugned provisions of the Code of Criminal

Facts leading to the appeal

On 23rd July 1998, Shamim Reza Rubel, 20, a BBA

student of Independent University, died in police custody after being arrested under section 54 of the Code of Criminal Procedure, hereinafter shortly referred to as the Code and being declared dead on arrival at the Dhaka Medical College Hospital. A public outcry occurred with protests by members of the public, political parties, lawyers, teachers, students and human rights activists. His father a retired government official demanded a judicial inquiry. Sheikh Hasina, the incumbent Prime Minister, the then leader of the Opposition, Khaleda Zia, visited the bereaved family members. Within three days, on 27th July 1998, the government through the Ministry of Home Affairs established a one-person Judicial Inquiry Commission under Justice Habibur Rahman Khan, pursuant to the Commissions of Inquiry Act, 1956 by a gazette notification stating that it was doing so in relation to the ’matter of public importance’ in order to among others “inquire into the incident involving Shamim Reza Rubel, find out the perpetrators and make recommendations on how to prevent such incidents in the future” within 15 days.

The writ petitioners and others appeared before the Commission of Inquiry and made submissions and recommendations based on their experience of providing legal aid and advice to individual victims of torture and ill-treatment. The Commission made a set of recommendations for the prevention of custodial torture but no action was taken by the government in the light of the recommendations. The recommendations of the Commission were as under:

(a)                                     The police personnel carrying out the arrest should bear accurate, visible and clear identification and name tags

with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(b)                                     That the police officer carrying out the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.

(c)                                     A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be

entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(d)                                     The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(e)                                     The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(f)                                     An entry must be made in the dairy at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(g)                                     The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time.

The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(h)                                     The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health service of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well.

(i)                                     Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(i)                                     The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(k)                                     The police control room should be provided at all district headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Writ Petitioner No.2 Ain-O-Salish Kendra submitted a chart (after a survey throughout the Bangladesh) wherein it ascertained during the period between January, 1997 and December, 1997, several custodial deaths and torture had taken place. For better appreciation and evaluation the Chart is appended below:

12.1.97 Inqilab

Ain O Salish Kendra (ASK)

Duration:Ja

Death in Police Cust

. Mayenuddin Rajshahi C/J  Inqilab

80

7I lIltntesfsa q1 4.7.97 BB 15.7.97

abiraj (40)

.12.97 Janakantha

81

nu (41)

Death in Police/Jail Custody in Bangladesh

Duration: January to October ’98 may be stated below for better

understanding and appreciation

1994

1995

1996