The New Nation - Internet Edition

Justice A.F .M. Abdur Rahman

Although -not being covered by any of the Article of the Constitution alike Indian and Constitution of Pakistan, the Supreme Judicidry of Bangladesh did not sit idle when called on for exercising its inherent power manifested through Epistolary Jurisdiction to uphold the Human Right's of the poor. This has its qualifying characteristics from the jurisdiction known as 'Suo moto' so also Public Interest Litigation (PIL). On being apprised through any means either through newspaper feature or news item, from letter, even transcript upon a postcard, telegram or by an oral information laid before the Judge, the superior Court may exercise such jurisdiction which meanwhile styled as Epistolary Jurisdiction. The adjective Epistolary has its genus in the word Epistle meaning thereby any of the letters in the new testament of the Bible and as such, the adjective Epistolary generally manifest an expression made in the from of letter. Through a letter this jurisdiction of the higher judiciary can be invoked but certainly that must be connected with the question of upholding Human Rights.

The Indian- Constitution at its Article 39A empowered the High Courts of India to exercise Epistolary Jurisdiction which provides;

"Article 39A- Equal Justice and free Legal Aid: The State shall secure that the operation of the legal system promotes Justice, on a basis or equal opportunity and shall, in particular, provide free Legal Aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing Justice are not denied to any citizen by reason of economic or other disabilities" .

Alike Indian Constitution Article 39A, the Pakistan Constitution of 1973 in its Article 184 provides that notwithstanding anything contained in Article 199, if it transpires to the Supreme Court that necessary action must be taken in respect of upholding fundamental rights involved in a case relating to public interest the court may pass any order.

Relying upon such power the Supreme Court of India in a number of cases acted on non-formal petition specially letters sent to the court by any person or organisation engaged in the cause of upholding Human Rights treating the letter as writ petition one of such is the case or Bandhua Mukti Morcha vs Union of India. The hurdle the petitioner had to face initially in this case is the question of "Locus Standi' of the Bandhua Mukti Morcha as it appeared that the said organisation not being directly aggrieved with the time-old bonded labour system not entitled to invoke the writ jurisdiction of the Supreme Court even though formal petition not to speak of through informal letter. Their Lordship examined the relevant provision of Article 32 of the Indian Constitution and found that no specific method of proceeding has been provided in invoking the writ jurisdiction of the Indian Supreme Court and as such, the Supreme Court of India is empowered to initiate writ proceeding either though formal or non-formal petition. So far the question of 'Locus Standi' of Bandhua Mukti Morcha was raised the Court found that organisation long engaged in upholding the interest of a class of people who have little access to justice due to monetary disability is entitled to initiate writ proceeding by way of informal petition since the organisation cannot be compelled to expend money in order to set the ball in motion for the poor people with monetary disability. ( Reported in AIR 1984 (Sc) 802)

Earlier in the case of Peoples Union of Democratic Rights and others -Vs- Union of India, and Sila Barce -Vs- the State of Maharashtra and in many other cases after the case of Bandhua Mukti Morcha, the Supreme Court of India not only recognised the Epistolary jurisdiction of the superior courts of India but also made this informal way of initiation of writ proceeding in the Supreme Court institutional, specially when the question of upholding the Human Rights of poor came before the court .

One of such celebrated cases was Sunil Batra -Vs- Delhi Administration3 in which their Lordship in the India Supreme Court Mr. justice V. R, Krishna Aeyer, Mr. justice R. S. Pathak and Mr. Justice Chinnappa Reddi categorically opined that mere technicality can not be bar is initiating writ proceeding when the same involves a 'Habeas Corpus' matter. There lordship specifically expressed the view that the court shall uphold the human rights of the prisoner by exercising its writ jurisdiction when information reaches the court by any manner. In this case Sunil Batra, being a co-prisoner in Tihar jail witnessed one incident of torture committed by a jail warden in order to extort money from the concerned prisoner in which the warden poked a baton through the anus of the prisoner. Sunil Batra managed to send a letter to one of the Judges of the Supreme Court upon which writ proceeding was initiated. (1. Reported in AIR 1982 (Sc) 1472 2. Reported in AIR 1982 (Sc) 378 3. Reported in AIR 1982 (Sc) 1579)

In Pakistan the Epistolary Jurisciiction was first exercised in the case of Darshan Mashi -Vs- the State where a telegram received from a bonded labour Darshan Mashi was treated as writ petition and proceeding was initiated to redress the bonded labours who were under the inhuman condition under there master.

( Reported PLD (1990) 513 )

First in its kind in Bangladesh is the case of Dr. Fastina Perera which was initiated by Advocate Dr. Fastina Perera through sending letter to the then Chief Justice of Bangladesh Mr, Justice Mahmudul Amin Chowdhury. Wherein she upon annexing a newspaper report published in daily 'Prothom Alo' prayed for taking appropriate step against the illegal detention of 29 foreign nationals in Dhaka central jail for years together after expiry of their terms of sentence. The honorable Chief justice sent the letter to the High Court Division with a direction for taking appropriate step in the matter and their lordship Mr. Justice Hamidul Hoque and Justice Nazmun Ara Sultana issued 'Suo moto' Rule in Criminal Misc Case No. 2737 of 2001, After hearing the rule on 22 May 2001 not only the 29 foreign nationals in the Dhaka central jail but also 822 such detainee were directed to be released from different jails of Bangladesh whose term of sentence expired earlier. (Reported in 53 DLR 414)

The galaxy of opportunity that has appeared from this new innovation in the jurisprudence has not yet been adequately exploited in Bangladesh. The people or class of people having monetary disability have little access to justice which becoming more costlier due to the rise in rate of fees charged by the learned Advocates of the Bangladesh Supreme Court. A detained rickshaw puller under the Provision of Section 54 of the Code of Criminal Procedure certainly has no ability to approach a lawyer of the Apex Court to uphold his human right in obtaining the constitutional guarantee to be treated only in accordance with law if he is never brought before the court. The correct exploitation of the Epistolary Jurisdiction of the superior judiciary could be instrumental to uphold the Human Right's of such persons. A country with 14 crore people living 80% below the poverty level must keep some avenue for the poorest oppressed to avail the judicial system of the country in upholding his or their human rights without indulging himself to sell out his all belonging to meet up the ever rising greed of the person connected with judicial justice.

But to talk about informal way of invoking writ jurisdiction of the superior court does not mean to avoid all the age old procedures of the system. It has already been settled in Indian jurisdiction that even if the Epistolary Jurisdiction is available to an appropriate petitioner the formal system of proceeding of writ must be followed where it is possible to follow.

The Chief Justice of India in the year 1986 formulated a number of principle to be followed in exercising Epistolary Jurisdiction which is now being followed in the Indian jurisdiction which is worth to mention;

1. To invoke Epistolary Jurisdiction informal petition by way of letter, telegram or by laying information before the court must be addressed to the court and not to a particular judge.

2. Informal petitions containing allegation regarding violation of human rights should only be treated as writ petition when such informal petition is preferred on behalf of socially inadvanced people or class of people when such people or class of peoples suffers from any sort of disability, monetary of physical, specially when such person is a detainee.

3. There should be a public distress cell within the Supreme Court administration, which will consider these informal petitions and send the same to the appropriate bench for consideration of the same as writ by the judges on their leave.

4. When any such informal petition on behalf of people in taken as writ, general notification in the news paper must be made allowing impleading parties in 'the writ either in favour or against the cause.

5. The court shall appoint amicus curiae in the case and on public hearing decide the matter.

6. If any of the judges desires, to act on any information published in the newspaper he must act through the Chief Justice.

Although no such institutional action has yet been taken in Pakistan and in Bangladesh yet in view of the emerging non-accessibility to justice due to poverty of the peoples the Epistolary Jurisdiction of Bangladesh Supreme Court needs institutional recognition. Such a recognition must first come from the Judges of this august institution prior to which a change in mind set should occur to some of the judges who are too acquainted with formal procedure of the court and reluctant to even step beyond technicality. The desire to render justice to the oppressed should be the only yardstick whether Epistolary Jurisdiction should be exercised in future to uphold the Human Right's of the poor in Bangladesh.

High Court Division

(Criminal Miscellaneous Jurisdiction)

Sharif Uddin Chaklader-J.

Md. Emdadul Huq-J.

CRIMINAL MISC. CASE No. 6935 of 2006.

(Arising out of C.R. No. 41 of 2006 now pending in the Court of Chief Metropolitan Magistrate, Dhaka).

Shihan Monirul Hasan, Managing Director, F.E. & A. Limited

tAccused Petitions (on bail).

Vs.

The State, represented by the Deputy Commissioner, Dhaka t Opposite Parties.

For the petitioenrs : Mr. Md. Moulvi Wahidullah, Advocate.

For the opposite party : Mr. Mohammad

Ozair Farooq, Advocate.

Judgment: 15 May, 2007

Code of Criminal Procedure, 1898-

Section 561A- Quashment of proceedings- at premature stage-

The learned judges of the High Court Division expressed their surprise as to how the accused petitioners were granted anticipatory bail in a complaint case and without surrendering before the court of Magistrate filed the application for quashment of the proceedings.

The accused-petitioners could wait till framing of charge or seeking discharge under section 241A Cr.P.C if the charge was groundless. The application being premature has been rejected.

It appears that the accused petitioner did not surrender before the learned Magistrate before moving this court. We also find the petitioner did not invoke 'the provision of section 241A of the Code of Criminal Procedure and did not wait till framing of charge by the learned Magistrate tttt(Para 3)

Mr. Mohammad Ozair Farooq, learned Advocate, appearing for the opposite party submits that, sufficient ingredients of sections 420/406 of the Penal Code are disclosed in the petition of complaint (Para 4)

Considering all these aspects of the case, we are of the view that this Rule was obtained at a very prematurp stage. We find no substance in the rule. tttt(Para 5)

JUDGMENT

SHARIF UDDIN CHAKLADER-J:

This Rule, at the instance of' the accused petitioner, is for quashment of C.R. Case No. 41 of 2006 under sections 406/420 of the Penal Code pending in the Court of Chief Metropolitan Magistrate, Dhaka.

2. The complainant, a firm, supplied construction materials to the accused readymade concrete worth of Taka 30,30,780/-' who issued eheque on 21,10.2005 for Taka 5,86,000/- and another 2 cheques dated 21.10.2005 (for Taka 17,52,750/- and also a cheque on 6.10.2005; accused undertook to pay in cash, when the cheques were presented, those were returned with endorsement 'insufficient fund, Thereafter, the complainant placed the remaining 2 cheques and were dishonoured as the accused instructed not .to pay the money. From the order sheet, annexed as Annexure-A, we find complainant was examined on 8.1.2006 and thereafter the accused obtained anticipatory bail. We do not understand in a complaint case how anticipatory bail can be granted by this court, just after obtaining anticipatory bail and without going to the Magistrate, the accused rushed to this court and obtained this Rule to stifle this proceeding.

3. Mr. Md. Moulvi Wahidullah, learned Advocate appearing for the petitioner submits that the allegation disclosed in the petition of complaint disclosed a civil litigation as it crept up from business transaction. In support of his submission the learned Advocate relied on the decision reported in 45 DLR (AD) 27. We have gone through the decision and we find that this decision can no way come in any help of the accused petitioners. It appears that the accused petitioner did not surerender before the learned Magistrate before moving this court. We also find the petitioner did not invoke the provision of sections 241A of the Code of Criminal Procedure and did not wit till framing of charge by the learned Magistrate.

4. Mr Mohammad Ozair Farooq, learned Advocate, appearing for the opposite party, submits that, sufficient ingredients of sections 420/406 of the Penal Code are disclosed in the petition of complaint.

5. Considering all these aspects of the case, we are of the view that this Rule was obtained at a very premature stage. We find no substance in the rule.

6. In the result, the rule is discharged.

Order of stay granted earlier by this court is hereby vacated.

Case cited:

45 DLR (AD) 27.