Home : Supreme Court of Bangladesh

Serial No.	Name of the Parties, Citation and Key Words	Summary of the case	Key Ratio
1.	The State Vs. Nurul Amin Baitha and anr (Hasan Foez Siddique, CJ) 18 SCOB [2023] AD 1 Key words: Sections 11, 25, 26, 27, 28, 30 of Nari-O-Shishu Nirjatan Daman Ain, 2000; Section 302/34 of Penal Code; Sections 227, 238 and 423 of the Code of Criminal Procedure, 1898; major offence ; minor offence; deeming provision; alteration of charge;	The state filed this Criminal Review Petition against the observation made by the Appellate Division that the High Court Division has no right to convert the conviction under Section 11(Ka) read with Section 30 of Nari-O-Shishu Nirjatan Daman Ain, 2000 to one under section 302/34 of the Penal Code. The Appellate Division accepting the argument placed by the learned Attorney General came to the conclusion that the Tribunal which is created under the Nari-O-Shishu Nirjatan Daman Ain, 2000 is deemed to be the Court of Sessions of original jurisdiction and, is entitled to alter/amend the charge framed under Section 11(Ka) of the Ain to one under Section 302 of the Penal Code. Similarly, the High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case. Accordingly, the Appellate Division reviewed its earlier observation.	Section 25 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and 227 of the Code of Criminal Procedure, 1898: The laws of procedure are devised for advancing justice and not impeding the same. The main object and purpose of enacting procedural laws is to see that justice is done to the parties. The Ain contains no provision relating to framing of charge. Hence, in view of Section 25(1), the provisions of the Code which relate to framing of charge are applicable to the Ain. Section 227 of the Code clearly mentions that Any Court may alter or add to any charge at any time before judgment is pronounced. In view of this section it becomes very clear that the High Court Division as the appellate authority in the present case has the power to alter the charge framed by the Tribunal and convict the accused on the same. (Para 18)
2.	Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors (Obaidul Hassan, J) 18 SCOB [2023] AD 11 Key Words: Per incuriam; Section 4(3) of the Administrative Tribunal Act, 1980; Article 111 of the Constitution; maintainability of the writ petition by a retired public servant in service matter	A retired public servant filed a writ petition in relation to his service matter and got a rule and stay in his favour. The Government filed leave petition in the Appellate Division against the interim order of the High Court Division challenging its legality arguing that in service matter even retired public servants are required to seek relief in the Administrative Tribunal in view of section 4(3) of the Administrative Tribunal Act, 1980. Appellate Division accepted the argument of the Government and found that in an earlier decision reported in 71 DLR (AD) 319 the highest court wrongly held that in service matter writ petition by retired public servant is maintainable. The Appellate Division then departed from its earlier decision finding it to be per incuriam and discharged the Rule issued by the High Court Division. However, the Court also observed that in view of the article 111 of the Constitution, High Court Division is not competent to hold any decision of the Appellate Division to be per incuriam and it must follow the decision in toto. High Court Division only can bring the matter in the notice of the Honorable Chief Justice of Bangladesh. Similarly, subordinate Courts have no jurisdiction to raise any question regarding the legality of the judgment of the High Court Division saying that it was a judgment per incuriam. Because only a Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where the earlier judgment was decided wrongly.	Any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam: Per incuriam, literally translated as “through lack of care” is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous Court judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided per incuriam is that it need not be followed by any equivalent Court. Ordinarily, the rationes of a judgment is binding upon all sub-ordinate Courts in similar cases. However, any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam. (Para 13) Article 111 of the Constitution: If any judgment pronounced by the Appellate Division, as per provision of Article 111 of the Constitution the High Court Division is not competent to say the judgment is per incuriam. Primarily the High Court Division must follow the judgment in toto, however, in such a situation the High Court Division may draw attention of the Hon’ble Chief Justice regarding the matter. On the other hand even if any judgment is pronounced by the High Court Division, the subordinate Courts have no jurisdiction to raise any question regarding the legality of the judgment on the point of per imcuriam. Parties may get remedy on preferring appeal. (Para 24)
3.	Mrigangka Mohan Dhali & ors Vs. Chitta Ranjan Mondol & ors (Borhanuddin, J) 18 SCOB [2023] AD 20 Key Words: The Hindu Law of Inheritance (Amendment) Act, 1929; Dayabhaga Law of Inheritance; Stridhan; doctrine of religious efficacy; limited interest	The suit property belonged to Rukkhini Dashi who purchased the same from her Stridhan fund. Rukkhini Dashi died leaving only daughter Hazari Sundory Dashi who also died leaving only daughter the plaintiff Elokeshi Mondol. Defendant nos.1-6 who were paternal uncles of the plaintiff, managed to get the suit land recorded in their names in the S.A. record. When the defendants denied the title of the plaintiff, she filed the present suit. The trial Court decreed the suit in favor of the plaintiff. The Appellate Court confirmed it and on revision the High Court Division affirmed the judgments and decrees of the Courts bellow. The concurrent findings of the Courts were that the suit property was the Stridhan property of Rukkhini Dashi. The defendants filed appeal before the Appellate Division contending that according to the ‘Dayabhaga’ school, property inherited by a woman whether from a male or from a female, does not become her Stridhan and she takes only a limited interest in the property and on her death the property passes not to her heirs but to next heir of the person from whom she inherited it and if the property is inherited from a female, it will pass to the next Stridhan heirs of such female, thus the impugned judgment and order is liable to be set-aside. On the contrary, the contention of the plaintiff-respondents were- when a daughter inherits Stridhan of her mother, she takes it absolutely like a son because son and daughter inherit equally and she acquires all the rights to dispose of the Stridhana property at her will and there is no express text restricting women’s heritable right inasmuch as equality is the Rule where no distinction is expressed and as such Elukeshi Mondol is entitled to get the property of her grandmother Rukkhini Dashi after the death of her mother Hazari Sundory Dashi. The Appellate Division, however, examining the texts from ‘The Dayabhaga’ by Jimuta Vahana, Mulla’s principle of Hindu Law and hearing opinion of the Amicus Curiae accepted the argument of the plaintiff-respondents and dismissed the civil appeal with some observations.	In case of Stridhan property, it reverts back to the nearest heir of the female who is the owner of that property: The guiding ‘Principle of Law of Inheritance’ under the Dayabhaga School of Law, which prevails in Bangladesh, is the doctrine of religious efficacy. Religious efficacy means capacity to confer special benefit upon the deceased person. Succession is the mode of devolution of property under the Dayabhaga system. The general Rule of inheritance is that once a property is vested upon any one, it will not be divested. But in case of Hindu woman, getting limited ownership in the property is contradictory to this general Rule as the property will revert back to the heir of the owner. Only in case of Stridhan property, it reverts back to the nearest heir of the female who is the owner of that property. It is to be noted that succession of the ‘Stridhan property’ is held absolutely by a female. (Para 17) When a daughter inherits Stridhan of her mother, she takes it absolutely like a son: When a daughter inherits Stridhan of her mother, she takes it absolutely like a son because son and daughter inherit “EQUALLY” and not even a single line of “The Dayabhaga” suggests it to become her “widow’s estate” or anything like that. (Para 35)
4.	Bangladesh & ors Vs. Md. Selim Khan & ors (M. Enayetur Rahim, J) 18 SCOB [2023] AD 36 Key Words: Article 102 of the Constitution; Sections 2 (7), 3, 9, 10, 11 and 13 of বালুমহাল ও মাটি ব্যবস্থাপনা আইন ২০১০; Balumahal; mandamus; Ports Act, 1908 and Ports Rules, 1966	High Court Division disposing of a writ petition directed concerned authority to co-operate substantively with the writ petitioner-respondent for dredging/extracting of 86.30 lac cubic meter of sand/earth at writ petitioner’s own cost from the dubochar of Meghna River bed situated under different Mouzas by country made dredger for the proper navigability of the river. Against the order of the High Court Division the Government preferred this leave petition. The Appellate Division analyzing sections 2 (7), 3, 9, 10, 11 and 13 of h¡m¤jq¡m J j¡¢V hÉhØq¡fe¡ BCe 2010 found that the High Court Division in contravention of the above Act most illegally and arbitrarily leased out the Mouzas in questions to the writ petitioner for extracting sand which it cannot do. Consequently, Appellate Division set aside the judgment and order of the High Court Division with a direction to the Deputy Commissioner, Chandpur to take necessary steps to realize the royalty for the already extracted sand (evjy) from the writ petitioner.	Article 102 of the Constitution and Section 9 of বালুমহাল ও মাটি ব্যবস্থাপনা আইন ২০১০: The High Court Division cannot assume the power and jurisdiction of a particular authority conferred by a specific law/statute in exercising power under Article 102 of the Constitution of the People’s Republic of Bangladesh and thus, the High Court cannot declare a particular area as ÔBalumahalÕ making a particular law i.e. Ain 2010 nugatory or redundant. Thus, in this particular case the High Court Division has traveled beyond its jurisdiction declaring the mouzas in question as ÔBalumahalÕ. (Para 20) (Para 20)
5.	Md. Zahangir Alam & ors Vs. The State (Md. Ashfaqul Islam, J) 18 SCOB [2023] AD 45 Key Words: Article 105 of the Constitution; Rule 1 of Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988; error apparent on the face of the record; commutation of sentence	Dr. S. Taher Ahmed a Professor of the University of Rajshahi was brutally killed at his varsity residence. All the convict petitioners were found guilty and sentenced to death by the Tribunal. The High Court Division commuted the sentence of death to imprisonment for life awarded to convict Md. Abdus Salam and Md. Nazmul. It confirmed the sentence of death awarded to the appellant Dr. Miah Md. Mohiuddin and Md. Zahangir Alam. Against which, they preferred criminal appeals, criminal petitions and jail petitions and the state preferred criminal petitions. The Appellate Division dismissed all those cases and affirmed the judgment and order of the High Court Division. Against that judgment of the Appellate Division these review petitions were filed by the convicts. In the review petitions learned Counsel of the convicts made the same submission that they had made during appeal hearing without pointing to any error apparent on the face of the record that has been committed in the judgment passed by the Appellate Division. The Appellate Division finding no ground for reviewing its earlier decision dismissed all the review petitions observing that there is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition. It also observed that if the cases are reopened on flimsy grounds which have already been addressed by the courts then there will be no end to the litigation.	Article 105 of the Constitution and Rule 1 of Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988: The core question for consideration is whether there is error apparent on the face of the record which calls for interference of the impugned judgment. It is an established jurisprudence that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only against patent error of law. Where without any elaborate argument one could point to the error and say that here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions to be entertained about it, a clear case of error apparent on the face of the record would be made out. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the Court. (Para 23)
6.	Bangladesh & ors Vs. Sk. Md. Abdullah Faruque & ors (Md. Abu Zafor Siddique, J) 18 SCOB [2023] AD 54 Key Words: Article 102 of the Constitution; Chapter XIA of the Supreme Court (High Court Division) Rules, 1973; জাতীয়করনকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরন বিধিমালা-২০১৮;	In the instant case High Court Division directed the writ respondents to absorb the writ petitioners as Lecturers in their concerned Government Colleges relying on জাতীয়করনকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরন বিধিমালা-২০১৮ and gave relief to the writ petitioners although the Rule Nisi had not been issued in that term and the writ petitioners did not make any such prayer in the writ petition. The Appellate Division held that the High Court Division travelled beyond the scope of Rule Nisi in giving relief to the writ petitioners. Consequently, the judgment and order of the High Court Division was set aside.	Article 102 of the Constitution and Chapter XIA of the Supreme Court (High Court Division) Rules, 1973: The High Court Division erred in law in travelling beyond the scope/terms of the Rules Nisi: The person who wants to invoke article 102 must be an aggrieved person and must specify the relief in his prayers. Chapter XIA of the Supreme Court (High Court Division) Rules, deals with preparing and filing of writ petition under article 102 of the Constitution. It provides that the aggrieved person must specifically set out the relief sought for. So, the writ petitioner must have specific claim in the form of prayer against such persons who are respondents, following which the Court can grant relief, if favourable, in accordance with law. In the present cases, the High Court Division has delivered the impugned judgment and order basing on the “জাতীয়করনকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরন বিধিমালা-২০১৮” by which the earlier Rules of 2000 has been repealed and thereby directed the writ respondent-leave petitioner herein to absorb the writ petitioners-respondents herein as Lecturers in their concerned Government Colleges despite of the fact that the writ petitioners did not make any such claim in the form of prayer in the writ petition asking absorption under the aforesaid absorption Rules of 2018 nor the Rules Nisi were issued at that effect. As such, the High Court Division erred in law in travelling beyond the scope/terms of the Rules Nisi in both the writ petitions in giving relief to the writ petitioners while passing the impugned judgment and order. (Para 25 & 26)
7.	IDRA Vs. Ms. Shaila Akhter & ors (Jahangir Hossain, J) 18 SCOB [2023] AD 62 Key Words: Temporary appointee; section 10 of বীমা উন্নয়ন ও নিয়ন্ত্রন কর্তৃপক্ষ আইন, ২০১০; putting stigma; principle of natural justice;	In the appointment letter of the writ petitioner it was clearly mentioned that her appointment as a Junior Officer was on a temporary basis without mentioning in it any period for which she was appointed. She was assigned various duties by the authority during her service which indicated her good performance and she received a pay rise. Suddenly, the authority issued a show cause notice as to why she would not be removed from service for dissatisfactory performance requiring her to make the reply within one week. The writ-petitioner replied describing her good performance during her service but paying no heed to the reply and without giving any opportunity of personal hearing she was removed from service. The High Court Division directed the writ respondent to reinstate the writ petitioner. On appeal, the Appellate Division found that the writ petitioner could not be termed as temporary appointee because no specific period of her appointment was mentioned in the appointment letter. The Court also held that principle of natural justice demands before putting stigma of inefficiency an opportunity of being heard should have been given to the writ-petitioner. Mere mentioning of inefficiency in the impugned order of removal is nothing but an arbitrariness on the part of the authority. Consequently, the appeal was dismissed.	If the appointment letter does not contain any fraction period or certain period for which someone is appointed she could not be termed as temporary appointee: Admittedly, Insurance Development and Regulatory Authority [IDRA] established under the বীমা উন্নয়ন ও নিয়ন্ত্রন কর্তৃপক্ষ আইন, ২০১০ and to run the aforesaid IDRA, some employees were appointed along with writ-petitioner without waiting for the formation of organogram of service rules under the said Ain, 2010. In the present case it reveals that the writ-petitioner [respondent No.01] was appointed initially on 01.08.2011 and subsequently after considering her good performance by office order dated 04.01.2012 her monthly salary has been increased to Tk. 12000/- with effect from 01.01.2012. It further appears that she got appointed in the post of Junior Officer on temporary basis. But the appointment letter of the writ-petitioner [respondent No. 01] does not contain any fraction period or certain period for which she was appointed and as such she could not be termed as temporary appointee. (Para 21)