The New Nation - Internet Edition

Granting bail and stay orders : Supreme Court's jurisdiction

Barrister Md. Abdul Halim

From ordinary people's point of view, it is sometimes very typical in many cases in Bangladesh that verdict in favour of the prosecution is obtained or granted in the trial Court but overturned or stayed in the High Court on its first move be it by way of writ, quashing application or appeal. In the wake of one-eleven incident with the takeover of the military-backed caretaker government the mass arrest of political bigwigs who have hitherto been infamous for their corruption and misdeeds as public servants and their subsequent prosecution by special courts in corruption charges have eased public anger in the sense that no one is above the law.

However, this easing concern has suddenly turned out to be a matter of lull and hush among general public in the wake of mass granting of bail and order of stay of proceeding or judgment of the trial Court by the apex judicial body in the country which is seen as the last bastion of impartial justice. The public perception is at stake with some avowed questions: is law partial or blind? How can 'the law' or judicial system be such drastically twisting? Did the trial courts perform all judicial errors and mistakes? I must make it clear at the very onset that the judicial system of a country does not always have to go by the public perception although it is set up for public service and rendering impartial justice. Impartial justice does not always mean easing or erring public perception.

The general public might perceive the apex court as a forum of justice but the term 'justice' is not something as ordinary people perceive; justice is to be done and served within the four corners of law and the judges themselves are not and cannot be above the law does not matter whether public perception is attacked or smashed in the way of dispensation of justice.

Very technically we call "law is blind"; we both judges and lawyers also do wear black gowns and coats. This also signifies that law is blind. Why? The law is blind in the sense that the court and the judges cannot go beyond the evidences produced in the court to prove or disprove the matter in question; once evidences are produced be it either by way of testimony of witnesses or material evidences during the trial process, the judge has to come up with the verdict strictly in accordance with the value and warrants of those evidences; and the superior courts above the judicial tire are also bound by those evidences and they have to give verdict or decision in accordance with the strengths of those evidences does not matter the verdict goes against public perception or affects any public concern.

Alongside the evidences there is another yardstick to be followed by the superior courts in upholding or rejecting a lower court judgment; and this is the strict compliance with every step or procedure of law while conducting investigation or trial of the matter in question.

If it is a criminal matter and there is slightest violation in compliance with the law and its procedure during trial or investigation, the superior court will have no other option but to stay the proceeding or judgment and finally dismiss or quash the matter in its final hearing.

When a writ or criminal miscellaneous applications or similar motion application is filed and moved in the High Court, usually the petitioner prays that the lower court proceeding or order or judgment be 'stayed and Rule issued' against the respondents because while conducting the investigation or trial the law was not somewhere properly followed. Stay means suspension of operation of the impugned order/action/judgment/ verdict till a specified period or till hearing as specified by the court. If the petitioner's lawyer can substantiate a prima facie case in his favour that there was violation of law and its procedure while conducting investigation or trial in the lower court, the High Court will usually grant a stay order and in that case granting bail becomes a matter of right of the accused person does not matter whether the accused is an ordinary citizen or serial killer or well known corrupt politician.

Who is to blame then? Is it the law or those who start prosecution? Well, it could be both. As far as recent high profile corruption cases against political bigwigs are concerned, it was at the very beginning of this process that whispering and legal opinion were on the air that this was not the proper net to catch these bigwigs.

The laws under the Emergency Ordinance and Emergency Power Rules and subsequent amendment to the anti-corruption laws under which these bigwigs were arrested and tried have been attacked in the court as illegal and unconstitutional and hence all trials and prosecution under these laws would be illegal.

It is fundamental norms of constitutional as well as criminal law that all persons will have right to get protection against expost facto law and this is guaranteed under article 35(1) of our constitution.

This means that a person cannot be convicted of an offence except for violation of a law in force at the time of the commission of the act charged as offence.

Sub-article 35(1) also provides that no person shall be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence.

Assuming that all procedure in the laws was duly followed, still there is scope for the judges of the apex court to stay proceeding and conviction under these provisions of the Constitution. Then question comes- why did the trial Courts undergo these trial procedure at the cost of time and money from the state purse?

Well, all these laws are still valid laws as they have not yet been declared by the apex Court illegal or unconstitutional and the trial Court judges cannot ignore the laws made by the government of the day. When a criminal case is brought before the trial court after investigation and charge-sheet, it is incumbent upon the trial court to start trial as per law and there is little scope to see whether all procedure in the investigation and filing the case was followed. This is mainly because the defence side does not raise these issues before the court and our trial judges work on adversary system as opposed to civil law system.

Under adversary or common law system judges are to play role impartially and have little jurisdiction to interfere into the process of investigation by the state. The groundwork for a successful conviction under a criminal law largely and mainly depends upon the police and investigation authorities and if they either accidentally or intentionally or being persuaded by any party manipulates or violates rules with regard to investigation or prosecution, it is obvious that in the long run the conviction might not be upheld in the apex court.

Tenant challenging the title of landlord

Appellate Division

(Civil)

Mohanunad Fazlul Karim-J

Amirul Kabir Chowdhury-J.

Md. Joynal Abedin-J.

CIVIL PETITION FOR LEAVE TO APPEAL NO. 258 OF 2005

(From the judgment and order dated 14th December, 2004 passed by the High Court Division in Civil Revision No.1931 of 2000).

Md. Rabiul Awal @ Sohel Miah

ttttt. Petitioner.

Vs.

Md. Abdur Rab @ Abdur Rab .

tttttt Respondent.

For the Petitioner- Mr. Mahbubey

Alam, Senior Advocate, instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record.

For the Respondent: None Represented.

Judgment: 29 April, 2007

Premises Rent Control Act, 1991-Section 18- Tenant when challenges the title of his landlord forfeits his right to stay in premises-'

Power of attorney- When· the original deed is net produced and proved cannot be sustained as valid-

The power of attorney was never produced in Court. A copy of said power of attorney was however, produced by the Ministry but no evidence was adduced to prove execution of said power of attorney by Nasim Razzak. In the absence of any proof of the power of attorney, the transfer by Habibullah to Rabiul Awal does not convey any title of original allottee Nasim Razzak to Rabiul Awal in the suit, the appellate Court therefore most illegally declared title of Rabiul Awal in the suit property tt..(Para 12)

Now with regard to possession, we cannot shut our eyes to exhibit-'Ka-5' dated 10.7.1986 and Exhibit-'Dha' dated 3.10.1987 whereby Abdur Rab admitted to be a tenant under Habibullah. He made out a case that defendant No.5 obtained his signature by force on blank white papers. Though we find a CD entry lodged with reference to dated 3.10.1987, we could not find any CD entry or criminal proceeding with regard to any incident dated 10.7.1986. Abdur Rab in fact, failed to prove that his signature on those documents were taken by force. Exhibit 'Ka-5' is a deed of monthly tenancy and Exhibit-'Dha' is an application to the Ministry of Works. If Abdur Rab entered into the suit land on the basis of monthly tenancy the moment he challenged the title of his landlord he became liable to be ejected therefrom and to vacate the premises first since his right to stay as a monthly tenant stood forfeited. He is therefore obliged to vacate the premises in favour of Habibullah. On his own admission Habibullah had got better right than/him to get back possession ttttt. (Para 14)

In such view of the matter, direction for handing over possession by Abdur Rab cannot be taken any exception. The impugned judgment and decree declaring the title of Rabiul Awal in the suit property however cannot be sustained in law which no doubt, occasioned failure of justice and accordingly, Civil Revision No. 1931 of 2000 is made absolute in part but discharged the Rule in Civil Revision No.2197 of 2000 but direction to hand over possession is maintained unless ejected in due process of law. Impugned decree passed in allowing Title Appeal No. 153 of 1999 is upheld in part and Title Suit No.51 of 1997 is accordingly decreed in part that Abdur Rab is directed to hand over possession of the suit property in favour of Habibullah within sixty days. Impugned decree passed in dismissing Title Appeal No.207 of 1999 is upheld and Title Suit No.52 of 1997 is accordingly dismissed tt..(Para 15).

JUDGMENT

MOHAMMAD FAZLUL KARIM-J:

Delay of 2 days is hereby condoned. This application under Article 103 of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 14.12.2004 passed by the High Court Division in Civil Revision No.1931 of 2000 (heard analogously with Civil Revision No.2197 of 2000) reversing judgment dated 30.1.2000 passed by the Additional District Judge, Court No.7, Dhaka in Title Appeal No. 153 of 1999 affirming those dated 08.03.1999 passed by the Subordinate Judge, Arbitration Court, Dhaka in Title Suit No.51 of 1997decreeing in part.

2. One Abdur Rab as plaintiff on 17.11.1990 instituted Title Suit No. 388 of 1990 in the First Court of Assistant Judge at Dhaka against Abdul Jalil and others for a decree of declaration including one that the power of attorney being No.700S dated 02.07.80 and 8008 dated 30.12.89 executed and registered by defendant No.2 in favour of defendant No.5 Rabiul Awal was forged, collusive and of no legal effect.

3. The case, in short, is that the suit property measuring about 131 square yards with a house and structures thereon fully described in the schedule to the plaint was originally allotted to one Nasim Razzak by the Ministry of Works by a deed of lease being No.1701 dated 06.03.69. During the war of liberation, said Nasim Razzak left for Pakistan with his family leaving behind the possession of the suit property to one Md. Idris Ali. Thereafter, whereabouts of said Nasim Razzak could not be ascertained. While Idris Ali was thus in possession by payment of municipality taxes, rates etc. he on 12.08.85 transferred the possessory right to the plaintiff at a consideration of Taka 70,000.00 only by way of a registered power of attorney dated 12.08.85. Plaintiff has since then been living with family in the suit property,

4. The plaintiff unsuccessfully tried to mutate his name. Being asked by said Ministry of Works, the plaintiff submitted all papers in support of his possession. Number of inquiries was held in respect of possession of the suit property by said Ministry.

5. Lastly, on 13.12.89 the plaintiff finally prayed for allotment in the aforesaid Ministry of Works whereupon Assistant Commissioner (Settlement) ordered for another inquiry. Then, he came to know that defendant No.2 already obtained

permission from said Ministry on 12.08.1989, and executed and registered a sale deed being No. 8008 in favour of defendant No.5.

6. The further case of the plaintiff is that on 31.08.1987 defendant No.2 obtained his signatures forcibly on some blank papers and the plaintiff on 06.10.1987 lodged a GD Entry with the Mirpur Police Station and also informed said Ministry. On 02.07.1990, defendant No.5 also beat the plaintiff and looted away his goods and the plaintiff lodged Mirpur P.S. Case No.74(7)90 against defendant No.5. The case ended in conviction of defendant No.5 and sentenced to two years rigorous imprisonment. The plaintiff also instituted Criminal Proceedings under Section 107 being Criminal Case No. 16 of 1997 against defendant No.5.

7. Defendant No. 6, Basir Ali also claimed the suit property by way of purchase from Nasim Razzak by a registered sale deed being No. 17536 dated 14.05.1980. The plaintiff came to know that both sale deeds were forged and collusive. The suit was ultimately on transfer to the court of Subordinate Judge and Arbitration Judge at Dhaka renumbered as Title Suit No. 52 of 1997,

8. On 15.02.1992 said defendant No. 5 Rabiul Awal of earlier suit as plaintiff also instituted Title Suit No. 22 of 1992 against said Abdur Rab in the Second Court of Subordinate Judge, at Dhaka for a decree of declaration of his title in the selfsame property and also for recovery of possession.

9. Mr. Mahabubey Alam, learned Counsel, appearing for the petitioner submits that since the petitioner after being substituted as lessee in place of the original lessee in respect of the suit premises and he having been. accepted as such on receipt of rent from him and on mutation of his name, the High Court Division erred in not decreeing the suit as prayed for; that since the Government having not contested the suit by denying the claim of the petitioner, the High Court Division erred in decreeing the suit in part.

10. Lastly Mr. Alam farther submits that the title of the petitioner having been established in respect of the suit premises by accepting him as owner of the suit property, the High Court Division erred in not declaring the title of the plaintiff in the suit land.

11. The High Court Division found no material on record that Nasim Razzak left Bangladesh for Pakistan with his family leaving behind the possession of the property to one Idris Ali who also never came before the Court. His case is that by, 1 power of attorney dated 12.08.1985 said Idris Ali transferred the possessor right in a consideration of Tk.70,000.00 to Abdur Rab and in his turn Abdur Rab possessed the suit property since then.

The case of Rabiul Awal, the plaintiff of subsequent suit, is that Nasim Razzak appointed defendant No.2 Habibullah as his duly constituted attorney on 02.07.1986. Thus empowered, Habibullah took permission from the Ministry of Works on 02.08.1989 and transferred the suit property by a sale deed being No.8008 dated 13.07.1989 to the plaintiff Rabiul Awal. Since then the plaintiff Rabiul Awal demanded possession from Abdur Rab. Over such demand of possession, there were various litigations including criminal cases between Abdur Rab and Rabiul Awal.

12. The power of attorrney was never produced in Court. A copy of said power of attorney was however, produced by the Ministry but no evidence was adduced to prove execution of said power of attorney by Nasim Razzak. In the absence of any proof of to power of attorney, the transfer by Habibullah to Rabiul Awal does not convey any title of original allottee Nasim Razzak to Rabiul Awal. Thus, the appellate Court therefore most illegally declared title of Rabiul Awal in the suit property.

13. Similarly, Abdur Rab failed miserably to prove the power of Idris Ali to transfer any right of the original allottee. By the so-called power of attorney dated 12.08.1985 Abdur Rab therefore, acquired no right in the property. Accordingly, the Courts below therefore concurrently dismissed the suit of said Abdur Rab. Similarly Rabiul Awal having failed to prove his title in the suit property, he was not entitled to any declaration of title in his suit.

14. Now with regard to possession, we cannot shut our eyes to exhibit-'Ka-5' dated 10.07.1986 and exhibit-'Dha' dated 03.10.1987 whereby Abdur Rab a admitted to be a tenant under Habibullah. He made out a case that defendant No.5 obtained his signature by force on blank white papers. Though we find a GD entry lodged with reference to dated 03.10.1987, we could not find any GD entry or criminal proceeding with regard to any incident dated 10.07.1986. Abdur Rab in fact. failed to prove that his signature on those documents were taken by force. Exhibit 'Ka-5' is a deed of monthly tenancy and Exhibit 'Dha' is an application to the Ministry of Works. If Abdur Rab entered into the suit land on the basis of monthly tenancy the moment he changed the title of his landlord he became liable to be ejected therefrom and to vacate the premises first since his right to stay as a monthly tenant stood forfeited. He is therefore obliged to vacate the premises in favour of Habibullah. On his own admission Habibullah had got better right than him to get back possession.

15. In such view of the matter, direction for handing over possession by Abdur Rab cannot he taken any exception. The impugned judgment and decree declaring the title of Rabiul Awal in the suit property however cannot be sustained in law which no doubt, occasioned failure of justice and accordingly, Civil Revision No. 1931 of 2000 is made absolute in part but discharged the Rule in Civil Revision No.2197 of 2000 but direction to hand over possession is maintained unless ejected in due process of law. Impugned decree passed in allowing Title Appeal No. 153 of 1999 is upheld in part and Title Suit No.51 of 1997 is accordingly decreed in part that Abdur Rab is directed to hand over possession of the suit property in favour of Habibullah within sixty days. Impugned decree passed in dismissing Title Appeal No.207 of 1999 is upheld and Title Suit No.52 of 1997 is accordingly dismissed.

16. In view of the above, we find no substance in the submissions of the learned Counsel appearing for the petitioner.

17. Accordingly, the petition is dismissed without any order as to costs.

Loan inclusive of principal, interest, penal interest

High Court Division

(Special Original Jurisdiction)

Nazmun Ara Sultana-J.

Md. Abu Tariq-J.

WRIT PETITION No. 6194 of 2005

(An application under Article 102 of the Constitution of the People's Republic of Bangladesh. )

Md. Fazle Kader Mukul ttt..Petitioner.

Vs.

Bangladesh and others ttt.Respondents.

For the Petitioner : Mr. Mohammad

Imran Jahangir, Advocate,

For the respondent No 3 : Mr. Asad Hossain Chowdhury, Advocate.

Judgment: 11 September, 2007

Artha Rin Adalat Ain, 1990-

The word "FY" (loan) includes the principal as well as interest, penal interest, etc.

As the Appellate Division of the Supreme Court has already decided the controversy with regard to the definition of the word "FY" as given under the Artha Rin Adalat Ain, 1990 so as to include the principal, interest, penal interest, etc and the impugned order passed by the Artha Rin Adalat having been based on the principle enunciated by the Appellate Division as aforesaid, the learned judges of the High Court Division found nothing to interfere with the same and as such discharged the Rule.

Since it has already been decided by the Appellate Division of this court that the word "FY" defined. in Artha Rin Adalat Ain, 1990 includes interest, penal interest, etc. so we find no wrong or illegality in the impugned orderttt(Para 6)

JUDGMENT

MD. ABU TARIQ-J: This Rule nisi was issued calling upon the respondents to show cause as to why the order No, 16 dated 11,4.2004 (Annexure-C) passed by the Artha Rin Adalat No.1, Dhaka in Artha Rin Suit No, 382 of 2004 shall not be declared to have been passed without any lawful authority and is of no legal effect and why the respondent No, 2 shall not be directed to strike out the interest, penal interest and other charges from the plaint of that Artha Rin Suit No., 382 of 2004 and/ or such other or further order or orders passed as to this court may seem fit and proper.

2. We have heard the learned Advocate for the petitioner and gone through the writ petition and the papers annexed thereto, The respondent No.3-Sonali Bank, Shilpa Bhaban, Corporate Branch filed the above mentioned Artha Rin Suit against the petitioner for realisation of loan money.

This petitioner appeared in the suit and at one stage filed an application praying for striking out the interest, penal interest and other charges from the plaint contending that since the suit was filed under Artha Rin Adalat Ain, 1990 the plaintiff was not entitled to get any interest, etc as the word "FY" defined in the said Artha Rin Adalat Ain, 1990 does not include interest, penal interest, ete.

3. The learned Judge of the Artha Rin Adalat, after hearing both the parties, rejected the said application of the petitioner observing that the Appellate Division of this court has already decided that the word "FY" as defined in Artha Rin Adalat Ain, 1990 includes interest, penal interest, etc also.

4. Today the learned Advocate Mr. Md. Imran Jahangir appearing for the writ petitioner has frankly conceded before us that it has already been decided by the Appellate Division of this court that the word "FY" as defined in Artha Rin Adalat Ain, 1990 includes interest, penal interest etc also.

The learned Advocate for the writ petitioner has frankly submitted also that' in the circumstances this Rule is liable to be discharged.

5. After the above frank admission of the learned Advocate for the petitioner himself there remains no necessity of further discussion at all.

6. Since it has already been decided by the Appellate Division of this court that the word "FY" defined in Art/w Rin Adalat Ain, 1990 includes interest, penal interest, etc. so we find no wrong or illegality in the impugned order.

7. In this circumstances, this Rule is discharged on contest without any order as to costs.