The New Nation - Internet Edition

Appellate Division

Criminal

Md Ruhul Amin CJ

Md Fazlul Karim J

MM Ruhul Amin J

Md Tafazzul Islam J

Md Joynul Abedin J

Md Hassan Ameen J

Md Abdul Matin J

Anti-Corruption Commission Appellant

(In both the cases)

vs

Barrister Mir Md Helaluddin and another (in CA 5 of 2008)

Barrister Nazmul Huda and another (In CA 6 of 2008)

……….Respondents

Judgment

March 6th, 2008

Criminal Law Amendment Act (XL of 1958)

Section 10

Emergency Powers Rules, 2007

Rule 11(1)

The expression “wewagvjvi Aaxb” refers to the Emergency Powers Rules as a whole. It cannot mean and refer to Rule 10 only; otherwise the expression would have been “D³ wewai Aaxb” i.e under aforesaid Rule…………(33)

Emergency Powers Rules, 2007

Rule 11(3)

The language of Rule 11(3) admits of no ambiguity and therefore, there is hardly any scope for interpretation. The intention of the law makers is manifested in the express words used in sub-rule 3 leaving no scope to doubt that such power of granting bail by the appellate Court has been taken away by express provisions…….(37)

Emergency Powers Ordinance (1 of 2007)

Section 3Ka

Criminal Law Amendment Act (XL of 1958)

Section 10

Emergency Powers Rules, 2007

Rule 11

The language of Rule 11(3) admits of no ambiguity and therefore, there is hardly any scope for interpretation. The intention of the law makers is manifested in the express words used in sub-rule 3 leaving no scope to doubt that such power of granting bail by the appellate Court has been taken away by express provisions.

The object of the Emergency Powers Ordinance to bring the offences under other laws within the mischief of the Emergency Powers Rules has been spelt out in section 3Ka of the Ordinance as quoted hereinbefore. The purpose is `ªyZ I Kvh©Kifv‡e m¤úbœ Kwievi Rb¨ .i.e. the offences under Criminal Law Amendment Act, Penal Code, Anti-Corruption Act, 2004 as well as offence under section 5(2) of Prevention of Corruption Act, 1947 have been brought under the Emergency Powers Rules for two purposes (1) For speedy trial and (2) For effective disposal of the appeals, etc. In the earlier law there was no time limit for disposal so far the appeals are concerned. There was no total embargo in granting bail. In order to implement the scheme of the law, the law makers brought the appeals and trial, etc. under the Emergency Powers Rules to avoid delay in the disposal and to ensure that the convicts do not run away on getting bail….(37 and 38)

Prevention of Corruption Act (ii of 1947)

Section 5(2)

In order to implement the scheme of the law, the law-makers brought the appeals and trial etc. under the Emergency Powers Rules to avoid delay in the disposal and to ensure that the convicts do not run away on getting bail. …….(38)

Emergency Powers Rules, 2007

Rules 3-8, 14 and 15

From the discussions as above we cannot but hold that Rule 11 of the Emergency Powers Rules, 2007 as a whole is not only applicable in respect of offences mentioned in Rules 3 to 8 of the Rules but also in respect of the offences under the laws mentioned in rule 14 and 15 of the Rules, inasmuch as the Rules are to be read and construed as a whole and not in isolation.

Granting of bail by the appellate Court is governed by section 426 of the Code of Criminal Procedure. In view of Rule 12 of the Rules section 426 of the Code of Criminal Procedure could have been applicable had it not been inconsistent with Rule 11(3) of the Rules and since Rule 11(3) specifically bars the jurisdiction of the appellate Court which is in the instant cases, the High Court Division, no bail can be granted by the appellate Court as the High Court Division in view of Rule 11(3) of the rules……………(40-41).

Anisul Huq, Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Appellant (In both the cases).

Khandker Mahbubuddin Ahmed, Senior Advocate instructed by Syed Mahbubur Rahman, Advicate-on-Record-For the Respondent (In CA No.5 of 2008)

Ajmalul Hossain QC, Senior Advocate instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the Respondents (In CA No. 6 of 2008).

Judgment

Md Abdul Matin J: These two criminal appeals have been heard together and are being disposed of under this judgment.

2. Criminal Appeal No. 5 of 2008 has arisen out of leave granting order date 31-1-2008 passed by this Court in criminal petition for leave to appeal No. 46 of 2008 challenging the order dated 13-12-2007 passed by the High Court Division in Criminal Appeal Nos. 3742 of 2007 granting bail to the respondent No.1.

3. Criminal Appeal No. 6 of 2008 has arisen out of leave granting order dated 3-2-2008 passed by this Court in criminal petition for leave to appeal No 47 of 2008 challenging the order dated 13-12-2007 passed by the High Court Division in Criminal Appeal No 4843 of 2007 granting bail to the respondent No.2.

4. The short facts in Criminal Appeal No.5 of 2008 are that Mir Md Nasiruddin, a former State Minister for Civil Aviation and Tourism submitted a wealth statement of Taka 22,50,06,999 only to the appellant, Anti-Corruption Commission. On enquiry the appellant, Anti-Corruption Commission found that he concealed wealth of Taka 3,22,11,637 only. On enquiry it was also found that as per Income Tax returns upto 2006, total income of Mir Md Nasiruddin, his wife Dalia Naznin and his son the respondent, Barrister Mir Md Helaluddin stood at Taka 1,60,60,000 only. Their total expenditure stood at Taka 27,70,000 only and their savings stood at Taka 1,32,90,000 only. Mir Md Nasiruddin opened income tax file in 1984, his wife opened in 1996 and the respondent, Barrister Mir Md Helaluddin opened in 2006. In this way their total savings stood at Taka 24,39,28,637 which is disproportionate to his legal and known source of income. The respondents is beneficiary of the wealth of his father acquired through improper means and just after the arrest of his father Mir Md Nasiuddin he transferred total amount of Taka 5,64,62, 947 from Joint Accounts of himself and his father to the accounts of his wife and mother-in-law.

5. On these facts Gulshan Police Station Case No. 26 dated 6-3-2007 under sections 26 and 27 of the Anti-Corruption Commissioner Act, 2004 and section 5(2) of the Prevention of Corruption Act, 1947 read with Rules 15ka, 15ka and 15Gha of the Emergency Powers Rules, 2007 and section 109 of the Penal Code, 1860.

6. The investigating officer after investigation of the cases submitted charge sheet against the co-accused Mir Md Nasiruddin under sections 26 and 27 of the Anti-Corruption Commission Act, 2004 read with section 5(2) of the Prevention of Corruption Act, 1947 and Rule 15Gha(5) of the Emergency Powers Rules, 2007 and against the accused-respondent Mir Md Helaluddin, charge sheet was submitted under section 27 of the Anti Corruption Commissioner Act, 2004 and section 109 of the Penal Code. Accordingly, charge was framed against the accused persons including the accused-respondent. After conclusion of trial the learned Special Judge, Special Judge Court No. 2 Dhaka by the impugned judgment and order date 4-7-2007 convicted the accused-respondent under section 27(1) of the Anti Corruption Commissioner ct, 2004 and section 109 of the Penal Code and sentenced him to suffer simple imprisonment for 3(three) years and to pay a fine to Taka 1,00,000, in default, to suffer simple imprisonment for 1(one) month more. The learned Special Judge found that the accused, Mir Md Nasiruddin acquired disproportionate wealth in his own name and in the names of his dependents including the accused-respondent Mir Md Helaluddin. Just after the arrest of his father Mir Md Nasiruddin, the accused-respondent Mir Md Helaluddin total amount of Taka 5,64,62,947 to the account of himself and his father. The learned Special Judge also found that such transfers of money were not irregular but the money was transferred with dishonest purpose to screen disproportionate wealth of his father. Accordingly, he was found guilty of the charge framed under section 27(1) of the Anti-Corruption Act, 2004 and section 109 of the Penal Code, 1860.

7. The short facts in Criminal Appeal No. 6 of 2008 are that on 22-3-2007 the Deputy Director Anti-Corruption Commission being informant lodged first information report with Dhanmondi police Station against the accused-respondents being Dhanmondi Police Station case No 70 dated 21-3-2007 under section 5(2) of the Prevention of Corruption Act, 1947 read with sections 26 and 27 of the Anti-Corruption Commissioner Act, 2004 and section 109 of the Penal Code alleging, inter alia, that the informant has been working as an enlisted contractor with the Roads and Highways Department under the Ministry of Communications since 1988 and received 5(five) work orders from the Ministry of Communications and went to the house of the then Communications Minister Mr Nazmul Huda and personally paid him altogether Taka 2,40,00,000 in three cheques as bribe for the said work order on 12th February, 2005 and 21st April, 2005 respectively. Out of the said total money the two cheques amounting to Taka 1 (one) crore each and another cash cheque amounting to Taka 40,00,000 were deposited in the account of weekly "Khoborer Ontoraley" owned by the accused-respondent No. 2 on 17th February, 2005 and 23rd April, 2005 respectively. Subsequently the accused-respondent withdrew the said amount of Taka 2,40,00,000 from her account through different cheques and opened two fixed deposits for her two daughters amounting to Taka 50 (fifty) lakh each. These gave rise to Dhanmondi Police Station Case No. 70 dated 21-3-2007 under section 5(2) of the Prevention of Corruption Act, 1947 read with section 161 and section 109 of the Penal Code.

8. The investigation officer after investigation submitted charge sheet against the accused-respondent No.1 under section 5(2) of the Prevention of Corruption Act, 1947 and under section 161 of the Penal Code and against the accused-respondent No.2 under sections 109 and 161 of the Penal Code. After conclusion of the trial the learned Special Judge, Special Court No. 2, Dhaka by the impugned judgment and order dated 27-8-2007 convicted the accused-respondent No. 1 under section 5(2) of the Prevention of Corruption Act, 1947 ad under section 161 of the Penal Code and the accused respondent No. 2 under section 161 read with 109 of the Penal Code and sentenced respondent No. 1 under section 5(2) of the Prevention of Corruption Act, 1947 to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Taka, 2,50,000, in default, to suffer rigorous imprisonment for 1 (one) year more with an order to confiscate the alleged gratification of Taka 2,40,00,000 to the State and sentenced respondent No. 2 to suffer simple imprisonment for 3 (three) years.

9. Leave was grante in Criminal Appeal No. 5 of 2008 to consider if as per the provision of Rule 11(3) of the Emergency Powers Rules, 2007 there is no provision for granting bail by the appellate Court during the pendency of the appeal against conviction and sentence under section 27(1) of the Anti-Corruption Commission Act, 2007 and under section 109 of the Penal Code which relates to offences of Anti-Corruption.

10. In Criminal Appeal No. 6 of 2008 leave was granted to consider if the High Court Division erred in law by granting bail to the accused-respondent, Mrs Sigma Huda as there is specific provision in the Emergency Powers Rules, 2007 barring the granting of bail in appeal arising out of a case under section 161 read with 109 of the Penal Code, 1860 triable under the procedure laid down by the Criminal Law Amendment Act, 1958 come within the purview of Rule 18 Kha(1) and 18Kha(3) and, as such, the provision in the Emergency Powers Rules, 2007 is applicable in such cases. Leave was granted to consider if the Emergency Powers Rules, 2007 are applicable in this case and if Rule 11(1) and Rule 11(3) of the Emergency Powers Rules, 2007 are also applicable. Rule 11(1) relates to filing an appeal in the appellate Court of proper jurisdiction and Rule 11(3) of the Emergency Powers Rules, 2007 prohibits the granting of bail in a case falling under the Emergency Powers Rules, 2007. Leave was granted to consider if the High Court Division failed to consider these provisions in their proper perspective and if wrongly concluded that Rule 11(3) of the Emergency Power Rules, 2007 is not applicable in this case.

11. The precise question that has been posed before us is, whether Rule 11(3) of the Emergency Powers Rules, 2007 debares the appellate Court from granting bail to the appellants during pendency of the appeal.

12. We have heard Mr Anisul Huq, learned Counsel and others appearing for the respondents and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

13. Mr Anisul Huq, learned Counsel, submits that the High Court Division erred in law by granting bail to the accused-appellant-respondents as there is specific provision in the Emergency Powers Rules, 2007 barring the granting of bail in appeal.

14. He further submits that the High Court Division failed to consider that the case being a case under section 161 read with109 of the Penal Code, 1860 is triable under the procedure laid down by the Criminal Law Amendment Act, 1958 and all cases triable under the said Act of 1958 have been brought within the purview of Rule 18Kha(1) and 18 Kha (3) and, as such, the provision of the Emergency Powers Rules, 2007 is applicable in such cases.

15. He further submits that the High Court Division should have further considered that as the Emergency Powers Rules. 2007 are applicable in these cases, Rule 11(1) and Rule 11(3) of the Emergency Powers Rules, 2007 are also applicable. Rule 11(1) relates to filing an appeal in the appellate Court of proper jurisdiction and Rule 11(3) of the Emergency Powers Rules, 2007 prohibits the granting of bail in a case falling under the Emergency Powers Rules, 2007.

16. He lastly submits that the High Court Division having not considered these provisions in their proper perspective wrongly concluded that Rule 11(3) of the Emergency Powers Rules, 2007 is not applicable in this case.

17. Mr Khandker Mahbubuddin Ahmed, learned Counsel appearing for the respondents, submits that Rule 11(3) of the Emergency Powers Rules, 2007 is applicable only in respect of offence under the Emergency Powers Rules of 2007 and not in respect of offence under the enactments mentioned in Rules 14 and 15 thereof.

18. He further submits that the expression ÒAvcxj Av`vjZÓ as appears in Rule 11(3) of the Emergency Powers Rules, 2007 does not include the High Court Division of the Supreme Court as the jurisdiction of the High Court Division of the Supreme Court cannot be curtailed or excluded by implication but it must be made by explicit expression. Hence, the appeal is liable to be dismissed.

19. Similar arguments have bee made in Criminal Appeal No. 6 of 2008 on behalf of the parties.

20. For the purpose of disposal of these appeals it is apposite to quote section 2 of Ordinance No. 1 of 2007 which runs as under :

Ò2| Aa¨v‡`‡ki cªvavb¨ AvcvZZt ejer Ab¨ †Kvb AvBb Pzw³ ev AvBbMZ `wj‡j wecixZ hvnv wKQyB _vKzK bv †Kb, GB Aa¨v‡`‡ki weavbbejx ev Z`axb cÖYxZ wewamg~n Ges wewamg~‡ni Aaxb cÖ`Ë Av‡`kmg~n Kvh©Ki _vwK‡e|Ó

21. Provision of this section thus provides that notwithstanding any provisions contained in any other law for the time being in force the provisions of this Ordinance shall prevail and shall have force.

22. Section 3 of the Ordinance empowers the Government to frame Rules and section 3Ka empowers the Government to make Rules to bring offences under other laws within the ambit of the Rules in respect of enquiry, investigation, trial and appeal of those offences for speedy and efficacious disposal of cases.

23. Section 3Ka runs as under :

Ò3K| GB avivi Aaxb cÖYxZ wewa Øviv Riyix Ae¯’v †NvlYvi Kvh©KiZvKv‡j †h †Kvb AvB‡bi Aaxb msNwUZ Aciv‡ai AbymÜvb, Z`šÍ, wePvi, Avcxj ev Zrmswkó Ab¨ †Kvb welq `ª“Z I Kvh©Kifv‡e m¤úbœ Kwievi Rb¨ we‡kl weavb cÖYqb Kiv nB‡e|

24. In exercise of the power under section 3 of the Ordinance No. 1 of 2007, Emergency Powers Rules, 2007 were promulgated. Sections 3 to 8 crearted different offences triable under the Rules and Rule 10 provides that the offences under the Rules may be tried in appropriate cases by Druta Bichar Adalat, Druta Bichar Tribunal, Metropolitan Magistrate or Magistrate of the First Class. Sub-rule 2 of Rule 10 makes offences under the Rules cognisable, non-compoundable and non-bailable.

25. The respondent No. 1 in Criminal Appeal, No. 5 of 2008 was convicted under section 27(1) of the Anti-Corruption Commission Act, 2004 and section 109 of the Penal Code and sentenced to suffer simple imprisonment for 3 (three) years and to pay fine of Taka 1,00,000, in default, to suffer simple imprisonment for 1 (one) month more. The respondent No. 2 in Criminal Appeal No. 6 of 2008 was convicted and sentenced under sections 161 and 109 of the Penal Code and she has been sentenced to suffer simple imprisonment for 3 (three) years.

26. Rules 14 and 15 of the Emergency Powers Rules, 2007 run as under :

Ò14| KwZcq Aciva `g‡b we‡kl weavb|-ivóª ev Rbmvavi‡Yi wbivcËv ev ¯^v_© iv‡_© ev Rb-k„sLjv I kvw¯Í eRvq ivwLevi cÖ‡qvRb, A‰ea A¯¿, we‡ùviK `ªe¨, aŸsmvZ¥K Kvh© (Sabotage), gRy``vix (Hoarding), Jla I Lv`¨ `ª‡e¨ †fRvj wgkªY,gy`ªv I miKvwi ÷¨v¤ú RvjKiY, Kv‡jvevRvix (Black-marketing) †PvivPvjvb (Smuggling) gv`K`ªe¨mn ivóª ev RbM‡Yi wbivc³v I A_©‰bwZK Rxeb wecbœKvix Ab¨vb¨ Mi“Zi Acivamg~n `gb wel‡q [(Penal Code (Act XLV of 1860), Arms Act, 1878 (Act XI of 1878), Explosives Substances Act, 1908 (Act VI of 1908), Foreign Exchange Regulation Act, 1947 (Act VII of 1947)], Special Posers Act, 1974 (Act XIV of 1974)] , gv`K`ªe¨ wbqš¿Y AvBb, 1990 (1990 m‡bi 20 bs AvBb) mn cÖPwjZ we‡kl AvBbmg~n cÖ‡qv‡M AvBb-k„sLjv ivKvix evwnbxmg~n mwµq f~wgKv MÖnY Kwi‡e|

15| `ybx©wZi Avcia m¤úwK©Z weavb|-Ri"ix Ae¯‘v †NvlYvi Kvh©KiZvKv‡j ivóª I RbM‡Yi A_©‰bwZK Rxeb, ¯^v_© I wbicËv wecbœKvix `ybx©wZ m¤úwK©Z Rxeb, ¯^v_© I wbivcËv wecbœKvix `ybx©wZ m¤úwK©Z Acivamg~n `gb wel‡q cÖPwjZ `ybx©wZ `gb Kwgkb AvBb, 2004 (2004 m‡bi 5bs AvBb) [gvwb- jÛwis cÖwZ‡iva AvBb, 2002 (2002 m‡bi 7 bs AvBb) Ges Income Tax Ordinance, 1984 (Order No. XXXVI of 1984) Gi Aaxb AvqKi], `ybx©wZ I gvwbjÛvwis m¤úwK©Z Acivamg~n Kvh©Kifv‡e `gb Kwievi Rb¨ AvBb-k„sLjv iKvix evwnbxmg~n D³ [ev Kwgkb Kg©KZ©v D³ Aciva D`NvUb ev AbymÜ¨vb] [Awe‡hvM ev gvgjv `v‡qi] Ges Aciv‡ai mwnZ mswkó AcivaxMY‡K cÖ‡qvR‡b †MÖdZvi Kwiqv, Z`šÍ I wePviv‡_© h_vh_ AvBbvbyM KZ…©c‡i wbKU mgc©b Kwievi j‡¨ Dchy³ e¨e¯‘v MÖnY Kwi‡e|Ó

27. From reading of these two Rules it appears that the offences under section 27 of the Anti-Corruption Act, 2004 and offences under sections 109 and 161 of the Penal Code have been brought within the mischief of the Emergency Powers Rules.

28. Rule 18 provides for expeditious disposal of cases and Rule 18 Kha runs as under:

Ò18L| we‡kl RR Av`vjZ KZ…©K wePvi m¤úwK©Z weavb|-(1) GB wewagvjv ev AvcvZZt ejer Ab¨ †Kvb AvB‡b wfbœZi hvnv wKQyB _vKzK bv †Kb, Riyix-Ae¯’v †NvlYvi Kvh©KiZv-Kv‡j wewa 14†Z DwjwLZ †Kvb AvB‡bi Aaxb †Kvb Aciva, hvnv wewa 19T Gi Aaxb Aby‡gv`b cÖvß, Ges wewa 15†Z DwjwLZ †Kvb AvB‡bi Aaxb †Kvb Aciva Criminal Law Amendment Act, 1958 Gi Aaxb wb‡qvMK…Z †h †Kvb we‡kl RR Gi Av`vjZ KZ…©K wePvi Kiv hvB‡e|Ó

29. From a close reading of these Rules it is crystal clear that the offences mentioned in Rules 14 and 15 are triable by the Special Judge as per provisions of Criminal Law Amendment Act, 1958 subject to the provisions of the Emergency Powers Rules, 2007, inasmuch as sub-rule 3 of Rule 18 Kha expressly provides :

Ò(3) Dc-wewa (1) Gi Aaxb †Kvb gvgjv we‡kl RR Gi-Av`vj‡Z wePviv_© M„nxZ nB‡j D³ gvgjvi wePvi Kvh©µg, GB wewagvjvi weavbvejx mv‡c‡¶, Criminal Law Amendment Act, 1958 Gi weavbvejx Abymi‡Y wb®úbœ Kwi‡Z nB‡e|Ó

30. The appeals in question were filed under the provisions of Criminal Law Amendment Act, 1958 as section 10 thereof provides that the appeals against the judgment and order of the Special Judge shall lie before the High Court Division. Such appeals shall be regulated by Rule 18Kha(3) of the Emergency Powers Rules, 2007 and therefore, the appeals in question are governed by Rule 11 of the Rules.

31. Rule 11 runs as under :

11| Avcxj [BZ¨vw`]| -(1) GB wewagvjvi Aaxb †Kvb Av`vjZ KZ…©K cÖ`Ë †Kvb ivq Av‡`k Øviv †Kvb e¨w³ mszä nB‡j, wZwb D³ ivq ev Av‡`k cÖ`Ë nBevi ZvwiL nB‡Z 30 (wÎk) w`‡bi g‡a¨ GLwZqvim¤úbœ Dchy³ Av`vj‡Z Avcxj `v‡qi Kwi‡Z cvwi‡eb t

Z‡e kZ© _v‡K †h, iv‡qi Rv‡e`v bKj (Certified Copy) cvB‡Z †h mgq jvwM‡e Dnv D³ mgq nB‡Z ev` hvB‡e|

(2) Dc-wewa (1) Gi Aaxb †Kvb Avcxj `v‡qi nB‡j Dnv `vwL‡ji 90 (beŸB) w`‡bi g‡a¨ D³ Avcxj wb®úwË Kwi‡Z nB‡e|

(3) `ybx©wZ m¤úwK©Z Aciv‡ai Awf‡hv‡M †Kvb e¨w³i wei“‡× †Kvb `Êv‡`k cÖ`vb Kiv nB‡j `ÊcÖvß e¨w³ Dnvi wei“‡× Avcxj `v‡qi Kwi‡j, Avcxj Av`vjZ, Avcxj PjvKvjxb mg‡q D³ `Êv‡`kcÖvß e¨w³‡K Rvwg‡b gyw³ cÖ`vb, ev wbæAv`vj‡Zi ivq I Av‡`‡ki Kvh©KvwiZv ¯’'wMZ Kwi‡Z cvwi‡e bv|

(4) Avcxj P~ovšÍfv‡e wb®úwË bv nIqv ch©šÍ `ÊcÖvß e¨w³i wbR bv‡g ev Zvnvi c‡ Ab¨ †Kvb e¨w³i bv‡g AwR©Z I iwZ †Kvb A_© ev bM`vqb‡hvM¨ †Kvb eÊ, wmwKDwiwU, †kqvi mvwU©wd‡KUmn †h †Kvb mvwU©wd‡KU& ev Abyiƒc Ab¨ †Kvb BÝUªy‡g›U ev ¯’vei-A¯’vei m®úwËi wei"‡× cÖ`Ë Aei"×KiY, †µvK ev ev‡RqvßKi‡Yi Av‡`k envj _vwK‡e|

(5)GB wewagvjvi Aaxb `v‡qiK…Z †Kvb gvgjvq ‡Kvb e¨w³ `ÊcÖvß nB‡j Ges D³ `‡Êi wei"‡× Avcxj `v‡qi Kiv nB‡j, D³ `ÊcÖvß e¨w³ RvZxq msm`mn †h †Kvb ¯’vbxq kvmb msµvšÍ cÖwZôv‡bi wbe©vP‡b AskMÖn‡Yi A‡hvM¨ nB‡eb|

(6) GB wewagvjvi Aaxb `v‡qiK…Z †Kvb gvgjvq †Kvb e¨w³ `ÊcÖvß nB‡j Ges D³ `Ê nB‡Z gyw³jv‡fi ci D³ `ÊcÖvß e¨w³ †Kvb miKvix, Avav-miKvix, mswewae× ms¯’v ev miKv‡ii mswkóZv iwnqv‡Q Ggb †Kvb cÖwZôv‡bi †Kvb c‡` AwawôZ nBevi A‡hvM¨ nB‡eb|

32. The argument on behalf of the respondent is that Rule 11 does not apply in cases of conviction under any of the offences under the laws mentioned in Rules 14 and 15, rather Rule 11 is applicable only in cases of the judgements of the Courts mentioned in Rule 10 and not in cases of the judgments by the Special Judge.

33.We find no substances in this argument, inasmuch as Rule 11 speaks of judgments of any Court under the Emergency Powers Rules and not on Courts mentioned in Rule 10. Section 18 Kha(3) sp;ecifically mentioned of Special Judge who has been mandated to follow Criminal Law Amendment Act, 1958 subject to the p;rovisions of the Emergency Powers Rules, 2007 and therefore any person aggrieved by any judgement of Special Judge, his appeal is regulated by Rule 11. The expression in Rule 11(1) "GLwZqvi m¤úbœ Dchy³ Av`vjZÓ in the instant cases refers to the High Court Division in view of section 10 of the Criminal Law Amendment Act, 1958 and the High Court Division when hearing an appeal under section 10 of the Criminal Law Amendment Act, 1958 is to follow the provisions of Rule 11 in the matters of sp;eedy and effective disp;osal of the appeals as well as in the matters of granting stay operation of the judgement of the Special Judge and also in the matters of granting bail. The expression ÔÔGB wewagvjvi AaxbÕÕ refers to the Emergency Powers Rules as a whole. It cannot mean and refer to Rule 10 only otherwise the expression would have been ÔÔD³ wewai AaxbÕÕ i.e. under the aforesaid Rule.

34. The question is, whether the High Court Division during pendency of the appeal is debarred from granting bail to the appellants.

35. Sub-rule 2 of Rule 11 provides for speedy disposal of the appeal within 90 days from the date of filing and sub-rule 3 provides in unequivocal terms that the appellate Court during pendency of the appeal shall not grant bail or stay operation of the judgement.

36. Rule 11(1) speaks of different appellate Courts which is obvious from the expression "GLwZqvi m¤úbœ Av`vj‡ZÓ and in view of session 10, the Criminal Law Amendment Act, 1958 the High Court Division is one of such apellate Courts and in view of Rule 11(3) High Court Division is the ÔÔAvcxj Av`vjZÕÕ and therefore the embargo in the matter of granting bail is at once applicable to the High Court Division is matters of appeals under section 10 of the Criminal Law Amendment Act, 1958, not because it is the High Court Division but because it is the appellate Court within the meaning of 18Kha(3) and 11 of the Emergency Powers Rules.

37. The language of Rule 11(3) admits of no ambiguity and therefore, there is hardly any scoe for interpretation. The intention of the law makers is manifested in the express words used in Sub-rule 3 leaving no scope to doubt that such power of granting bail by the appellate Court has been taken away by express provisions.

38. The object of the Emergency Powers Ordinance to bring the offences under other laws within the mischief of the Emergency Powers Rules has been spelt out in section 3Ka of the Ordinance as quoted hereinbefore. The purpose is Ó`ªyZ I Kvh©Kifv‡e m¤úbœ Kwievi Rb¨Ó i.e. the offences under Criminal Law Amendment Act, Penal Code, Anti-Corruption Act, 2004 as well as offence under Section 5(2) of Prevention of Corruption Act, 1947 have been brought under the Emergency Powers Rules for two purposes-(1) For speedy trial and (2) For effective disposal of the appeals, etc. In the earlier law there was no time limit for disposal so far the appeals are concerned. There was no total embargo in granting bail. In order to implement the scheme of the law, the law markers brought the appeals and trial etc. under the Emergency Powers Rules to avoid delay in the disposal and to ensure that the convicts do not run away on getting bail.

39. One of the Rules of interpretation is called mischief Rule which provides that "the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief. To carry out effectualy the object of a statute, it must be so construed as to defeat all attemp;ts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined." This manner of contruction has two aspects. one is that the Courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net." (Maxwell on The Interpretation of Statutes 12 Edition Page 137).

40. From the discussions as above we cannot but hold that Rule 11 of the Emergency, Powers Rules, 2007 as a whole is not only applicable in respct of offences mentioned in Rules 3 to 8 of the Rules but also in respect of the offences under the laws metioned in Rule 14 and 15 of the Rules, inasmuch as the Rules are to be read and construed as a whole and not in isolation of each other.

41. Granting of bail by the appellate Court is governed by section 426 of the Code of Criminal Procedure. In view of Rule 12 of the Rules section 426 of the Code of Criminal Procedure could have been applicable had it not been inconsistent with Rule 11(3) of the Rules and since Rule 11(3) specifically bars the jurisdiction of the appellate Court which is in the instant cases, the High Court Division, no bail can be granted by the appellate Court as the High Court Division in view of Rule 11(3) of the Rule.

42. Legal history is replete with examples that extreme situation often demanded a nation to take extreme legal measures, Penologists in America aptly wrote as early as in 1842 that "Penalties inflicted by human law, having their foundation in the intrinsie ill-desert of crime, are in their nature vindictive as well as corrective" Harsh laws, therefore, are made for greater benefit of the people when situation so demands. Amercan Supreme Court approved without dissent such harsh powers in the case of Harabayashi vs United States (1943) that involved more than one lakh Americans who were expelled from their communities for disloyalty, the mass evacuation of Japanes-Americans from the west coast during World War II and their confinement for three years "in Tar-Peper barracks fenced by barbed wire and guarded by armed soldiers" for "military necessity." Suspension of Constitutional rights had to be sanctioned by the Court during war time, Judges probably remembered the Roman statesman, Cicero who said, ''Silent leges inter arma" (laws are silent amid arms). We are, however in respectful agreement with Lord Atkin when he said, "amidst the clash of arms the laws are not silent. The may be changed but they speak the same language in war and peace." Habeas Corpus Suspension Act and the Emergency (defence) Act 1939 in England are the other examples. In India in 1975 though 9 High Courts held that writ petitions in the nature of Habeas Co||rpus was maintainable during emergency, the Indian Supreme Court in ADM, Jabalper vs Sukla, AIR 1976 (SC) 1207, held that no person has locus standi to move any writ petition for direction to enforce any right to personal liberty of a person detained under MISA.

43. In our jurisdiction in 1972 such harsh laws were made and jurisdiction of the High Court Division to grant bail was ousted.

44. Article 10 of PO 50 and Article 14 of PO 8 put similar restriction in the matter of granting bail to persons convicted under PO 8 of 1972 and PO 50 of 1972. In 18 appeals the High Court Division granted bail to persons convicted under the above two President Orders and 18 appeals were preferred before this Court by the Government and this Court set aside all those jugments of the High Court Division and allowed 18 appeals holding:

"The contention of Mr Abdul Hye Choudhury and Mr Serajul Huq that the restrictions in the matter of bail to convicted persons as enjoined under Article 10 of PO 50 and Article 14 of PO 8 were intended to apply only to the trial Court, therefore, cannot be sustained. The restrictions obviously apply and were intended to apply to the High Court Division to which appeal lies from convictions under these Orders."

This Court in that case further held that the provisions of the said two Articles are very extra-ordinary and they are likely to entail unnecessary hardship and injustice in some cases but such consideration should not deflect a Court from its duty to interpret law in the light of manifest intention of the legislature." Solicitor, Government of Bangladesh vs Syed Sanwar Ali 27 DLR (AD) 16.

45. In series of cases this Court laid down a general principle that in appeals involving short sentences the High Court Divisioin should dispose of the appeals expeditiously or release the persons on bail. Reference may be made of cases reported in 1991 BLD (AD) 96=43 DLR(AD) 119, 1994 BLD (AD) 184=46 DLR (AD) 143 and 1999 BLD (AD) 202=51 DLR (AD) 162.

46. These decisions declaring laws on bail is part of law of the land and should be read into all the special laws, in view of Article 111 of the Constitution. It may be noticed that in section 212 of the Government of India Act 1935 the language used was, "judgements of the Privy C ouncil is binding upon the Federal Court and all the Courts in India as far as practicable and judgment of the Federal Court is binding upon all Courts subordinate toi it as far as practicable but in our Article 111 the word 'judgement' has been replaced with the words "law declared" and "as far as practicable" has been omitted with deliberate intention to make the declaratory part of the judgments binding upon the whole nation not only upon the High Court Division and the Courts subordinate thereto.

47. It is shocking to note that though in the case reported in 1994 BLD (AD) 184=46 DLR (AD) 143 the High Court Division was admonished for writing long judgement for the purpose of disposal of bail petition but it appears that the High Court Division has totally ignored this message and in these cases dealt with bail applications at considerable length spending time and energy which was sufficient for disposal of the appeal itself.

In view of our discussion and observations as above, the appeals are allowed, the judgment in both the appeals are set aside but the appellate Court, in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal.