Appellate Division Cases
(Criminal)
PARTIES
Abdul Mannan Bhuyia ……………… .Appellant (In Crl. A. No.24 of 1999)
Amanu11ah Kabir Appellant (In Crl. A. No.25 of 1999)
-Vs-
Thc State and others ………………… Respondents. (In both cases)
JUSTICES
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
Md. Abdul Matin J
Judgment Dated: 2nd December 2007
The Penal Code, Section 141, 143
The High Court Division after reading the daily Ittefaq dated 10 to 12 February, 1999 issued a suo moto Rule on 15.02.1999 under Section 561A of the Code of Criminal Procedure upon the appellant of Criminal Appeal No.24 of 1999, who at the relevant time was General Secretary, Bangladesh Nationalist Party and others to show cause as to why activities for prohartal and anti-hartal should not be declared as cognizable offence and the Criminal Courts and the police should not be directed to take action accordingly ………………………..(3)
That Hartal being a historically recognized right is a political issue which cannot be resolved in a court of law, nor this right could be restricted or taken away by an order of any court by way of interpretation of any existing provision of the Penal Code………(7)
The High Court Division lacked any constitutional or judicial power to legislate and create on its own a cognizable offence…………………….. (16)
From a reading of the Section as quoted above it is obvious that the inherent power can be exercised only for either of the three purposes specifically mentioned in the Section. It is only where the High Court Division if satisfied either (1) that an order passed under the Code would be rendered ineffective, or (2) that the process of any Court would be abused, or (3) that the ends of justice would not be secured, that the High Court can exercise its inherent power ex debitio justitiae. But each part of the Section refers to a pending proceeding before any court …………………………..(21)
The legality of hartal was directly challenged in the case of Khondaker Modarresh Elahi Vs. The Government of the People’s Republic of Bangladesh reported in 21 BLD 352 ………………………………..(29)
Of Bharat Kumar K. Palicha and another Vs. State of Kerala and others reported in AIR 1997 (Kerala) 291, the Kerala High Court while declaring “bandh” as illegal held that a call for bandh is obviously distinct and different from the call for a general strike or call for a hartal and the Indian Supreme Court reported in AIR 1998 SC 1984 while upholding the judgment and order of the Kerala High Court ………………….(30)
We have no hesitation in holding that enforcing hartal by force leading to violence, death and damage to the life and property of the citizens is not only illegal but also liable to be detested and punished as per law of the land in existence. These are already cognizable offences under the Penal Code and other Penal laws of the land. But hartal or strike per se enforced through persuasion unaccompanied by threat, intimidation, force or violence is a democratically recognized right of the citizens guaranteed under the Constitution ………………………………(34)
Ours is a Constitution based on the spirit of separation of powers. The ‘tripartism’ of separation of powers envisioned by Montesquieu, evolved into a philosophy in the Constitution of United States and was further refined in “The Federalist”…………………….. (36)
According to Madison “mankind is moved less by reason than by passion, less by benevolence than by self-interest”. As Alexander Hamilton put it: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint” (Federalist, no.15) . Separated powers along with checks and balances are prominent among the several “interior” and “exterior” constraints described in The Federalist, nos.10,47,51……………………… (38)
“Myers V. United States” 272 U.S. 52,71,L.Ed.l60 “The doctrine of Separation of Powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.” …………………………..(39)
It is true that there is no such thing as absolute or unqualified separation of power in the sense conceived by Montesquieu but there is however a well marked and clearcut functional division in the business of the Government and our judiciary is to oversee and protect the oversteppings not only of other organs of the Government but also of itself. ………………………….(40)
In such view of the matter offence can be created only by a law, by an act of the Parliament and not by any legal pronouncement by any court …………..(42)
In the premises aforesaid the High Court Division acted beyond its authority in entering into the field of making law and to declare the pro-hartal and anti-hartal activities as cognizable offence………………………… (43)
Md. Aftab Hossain, Advocate-on-Record…………….. For the Appellants (In both cases)
Fida M. Kamal, Attorney General (Syed Haider AH, Deputy Attorney General and
Zahurul Islam, Mukul, Deputy Attorney General with him) instructed by Sufia Khatun, Advocate-on-Record …………………For the Respondents (In both cases)
Criminal Appeal Nos.24 & 25 of 1999 (From the judgment and order dated 13.05.1999 passed by the High Court Division in Criminal Miscellaneous Case No.668 of 1999.)
JUDGMENT
Md. Abdul Matin J: These two criminal appeals being Nos.24 and 25 of 1999 have been filed against the judgment and order dated 13.05.1999 passed by the High Court Division in Criminal Miscellaneous Case No.668 of 1999 (Suo moto) making the Rule absolute.
2. Since both the appeals involved common question of law and facts they are being disposed of by this judgment.
3. The High Court Division after reading the daily Ittefaq dated 10 to 12 February, 1999 issued a suo moto Rule on 15.02.1999 under Section 561A of the Code of Criminal Procedure upon the appellant of Criminal Appeal No.24 of 1999, who at the relevant time was General Secretary, Bangladesh Nationalist Party and others to show cause as to why
activities for pro-hartal and anti-hartal should not be declared as cognizable offence and the Criminal Courts and the police should not be directed to take action accordingly.
4. The appellant and the others appeared in the said Criminal Miscellaneous Case
through their respective learned Advocates and filed affidavit in reply to the suo moto notice issued by the High Court Division. The learned Judges of the High Court Division while hearing the Rule requested Mr. Shawkat Ali Khan and Mr. Jamiruddin Sircar, learned Senior Advocates to be present in the Court as Amicus Curiae. The State also filed affidavit through the Secretary, Ministiy of Home Affairs.
5. The appellant (criminal appeal No.24 of 1999) also filled affidavit-in-reply to the affidavits filed on behalf of the General Secretary, Bangladesh Aw ami League and
on behalf of the Secretary. Ministry of Home Affairs respectively.
6. The High Court Division took hearing of the aforesaid Rule and during hearing the learned Advocates for the parties and other learned Advocates made their elaborate
submissions both on law as well as on facts relating to or arising out of Hartal, its
character and history; submissions were also made with regard to the various activities which take place centering round Hartal and role of the law enforcing agencies.
7. The appellant submitted as to how and why Hartal is called and observed. He also submitted that Hartal has always been peaceful unless resisted by the ruling party working in the street in a violent manner with the support of the police, it was further
submitted that Hartal being a historically recognized right is a political issue which cannot be resolved in a court of law, nor this right could be restricted or taken away by an order of any court by way of interpretation of any existing provision of the Penal Code.
8. The learned Attorney General appeared in the rule on behalf of the State and made
his submission that “there having been no proceedings pending before the Division
Bench of the High Court Division, there is no scope of applying the provisions of
Section 561A of the Code of Criminal Procedure and the High Court Division had no jurisdiction to issue and dispose of the Rule”. The learned Advocate Mr. Mahbubey Alam, Additional Attorney General appeared for General Secretary, Awami League argued that the court had no jurisdiction.
9. The learned Advocates Mr. Jamiruddin Sircar and Mr. Abdur Razzaque appeared
in the Rule and also submitted that the High Court Division had no jurisdiction to issue Rule under Section 561A of the Criminal Procedure in relation to Hartal.
10. The High Court Division after hearing the aforesaid learned Advocates made the
Rule absolute with observation and direction upon “the criminal Court and the police” by the judgment and order dated 13.05.1999
11. By the said judgment and order dated 13.05.1999 the High Court Division after
narrating the background in issuing Rule suo moto and taking note of the news appearing in daily newspapers summarized chapter VIII of the Penal Code and then interpreted Section 141 of the Code by holding that according to the fifth clause of Section 141 of the Penal Code a procession or other activities of five or more persons in support of or to force hartal shall be unlawful assembly punishable under Section 143 of the Penal Code.
Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable
offence according to their behaviour under the relevant sections contained in chapter VIII of the Penal Code as summarized by the Division Bench which thereafter directed “the Criminal Courts and the police” to act accordingly and made the Rule absolute.
12. As against the said judgment and order Mr. Abdul Mannan Bhuiyan, General Secretary (as he then was) Bangladesh Nationalist Party filed Criminal Appeal No.24 of 1999 and Amanullah Kabir, President, Bangladesh Federal Union of Journalists who was an intervenor in the High Court Division preferred Criminal Appeal No.25 of 1999.
13. Upon hearing the learned Counsels for the appellants leave was granted to consider
the following submissions.
14. In the absence of any proceeding pending in any inferior Criminal Court or before it the learned Judges had no jurisdiction under Section 561A of the Cr.P.C. to issue a suo moto Rule upon the petitioner.
15. The High Court Division by the impugned order has infringed upon the fundamental rights guaranteed to the citizens of the country under Articles 37 and 38 of the Constitution.
16. The High Court Division lacked any constitutional or judicial power to legislate and create on its own a cognizable offence.
17. The appellant of Criminal Appeal No.25 of 1999 adopted the submissions of the learned Counsels in Criminal Appeal No.24 of 1999.
18. We have heard the learned Advocateon-Record of both the appeals and Mr. Fida M. Kamal, learned Attorney General appearing for the State.
19. The learned Advocate-on-Record for the appellants submits that in the absence of any proceeding pending in any court inferior to the High Court Division or before the High Court Division, the High Court Division had no jurisdiction under Section 561A of the Code of Criminal Procedure to issue Rule suo moto or make the Rule absolute.
20. In order to appreciate the submission of the learned Advocate-on-Record it is apposite to quote Section 561A of the Code of Criminal Procedure which runs as follows:
“561 A. Saving of inherent power of High Court Division.-Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such order as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of Justice.”
21. From a reading of the Section as quoted above it is obvious that the inherent power can be exercised only for either of the three purposes specifically mentioned in the Section. It is only where the High Court Division if satisfied either (1) that an order passed under the Code would be rendered ineffective, or (2) that the process of any Court would be abused, or (3) that the ends of justice would not be secured, that the High Court can exercise its inherent power ex debitio justitiae. But each part of the Section refers to a pending proceeding before any court. The first part refers to any order under the Code of
Criminal Procedure and the second part refers to the process of any court and the third one obviously refers to the preceding two parts to relate to a pending proceeding and cannot be read in isolation of the other two parts as the third part starts with “or” which is conjunctive and not disjunctive.
22. In such view of the matter in absence of any proceeding pending in any court amenable to the jurisdiction of the High Court Division, the High Court Division had no authority to exercise its inherent power under Section 561A of the Code of Criminal Procedure.
23. The learned Advocate-on-Record next submits that the impugned order has infringed the fundamental rights of the citizens of Bangladesh as guaranteed under Articles 37, 38 and 39 of the Constitution of the People’s Republic of Bangladesh.
24. Article 37 provides that every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject
to any reasonable restrictions imposed by law in the interests of public order or public
health.
25. Article 38 provides that every citizen shall have the right to form associations or
unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order. Article 39 reads:39(1) Freedom of thought and conscience is guaranteed.
(2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relations to contempt of court defamation or incitement to an offence-
(a) the right of every citizen to freedom of speech and expression; and
(b) freedom of the press, arc guaranteed.
26. The learned Advocate-on-Record submits that ‘Hartal’ is a historically recognized
democratic right exercised by the political parties at different times in this subcontinent. During the entire 20th century ‘hartal’ has been used as a peaceful weapon to force those who rule, to stop repression, exploitation and injustice. It has been used as a weapon to force the British Government to quit India creating two independent States in the sub-continent, namely, India and Pakistan. In their struggle against the colonial rule and
exploitation of the Pakistan’s ruling elite and then against the misrule and dictatorships
of the Governments in Bangladesh, the people of this country had to resort to ‘hartals’ in order to realize their greater objectives. Without ‘hartals’ called and observed in East Pakistan (now Bangladesh) the movement for independence of the country could not have achieved its momentum.
26. The learned Advocate-on-Record further submits that to call or to observe ‘Hartal’ is a democratic right exercised under the purview of the basic structure of the Constitution of Bangladesh. Although it causes a disruption of the daily life of the common people, it is the most peaceful expression of protest whereby people abstain from their routine work in a peaceful manner and demonstrate their disapproval of certain actions and/or failures of the Government or for realization of demands for the welfare and greater interest
of the people.
28. No Rule was issued challenging hartal. What was challenged before the High Court Division is the pro-hartal and antihartal activities. Therefore it is nobody’s ease that hartal is illegal. Even the learned Attorney General appearing for the State candidly submits that hartal is a recognized democratic right of the citizens.
29. The legality of hartal was directly challenged in the case of Khondaker Modarresh Elahi Vs. The Government of the People’s Republic of Bangladesh reported in 21 BED 352. In that case it was held:
“that call for hartal per se is not illegal but where any call for hartal is accompanied
by threat it would amount to intimidation and the caller for hartal or strike would be
liable under the ordinary law of the land. It is therefore my view and we agree with
the ratio in the flag burning case that where an act is meant to be nothing but an expression of protest such an act cannot be said to violate the fundamental right of the
citizens. The calling for hartal and not accompanied by threat would be only an expression guaranteed as a fundamental right under the Constitution. But any attempt to enforce it or ensure that hartal is observed would make the call illegal and interfering with the individual right.” 30. It further appears that in the case of Bharat Kumar K. Palicha and another Vs. State of Kerala and others reported in AIR 1997 (Kerala) 291, the Kerala High Court while declaring “bandh” as illegal held that a call for bandh is obviously distinct and different from the call for a general strike or call for a hartal and the Indian Supreme Court reported in AIR 1998 SC 1984 while upholding the judgment and order of the Kerala High Court held:
“We are satisfied that the distinction drawn by the High Court between a ‘Bandh’ and a call for general strike or “Hartal” is well made out with reference to the effect of a “Bandh” on the fundamental rights of other citizens. There cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. It is on the basis of this distinction that the High Court has rightly concluded that there cannot be any right to call or enforce a “Bandh” which interferes with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways.”
31. In such view of the matter despite the restrictions imposed in Articles 37 to 39 of
our Constitution no case has been made out or even argued that hartal per se is illegal.
32. It appears that in the hartal that took place on 9th. 1 Oth and 11 th February, 1999
there had been innumerable cases of injury including death and mischief to property and quite a number of criminal cases of very serious nature were registered in different police stations.
33. It further appears that in the hartal that took place on 23rd 24th and 25th February, 1999 large number of incidents leading to injury, death and mischief to property took place and no less than 69 very serious criminal cases were registered in the police stations of Dhaka City alone. The various paper cuttings annexed to the affidavits disclosed a very ugly picture of the contesting political parties in the name of enforcing hartal by force and resisting the hartal again by resorting to brute force. This court in unequivocal
terms records its disapproval to such sort of activities either enforcing the hartal or
resisting the hartal by party in opposition or party in power.
34. We have no hesitation in holding that enforcing hartal by force leading to violence,
death and damage to the life and property of the citizens is not only illegal but also liable to be detested and punished as per law of the land in existence. These are already cognizable offences under the Penal Code and other Penal laws of the land. But hartal or strike per se enforced through persuasion unaccompanied by threat, intimidation, force or violence is a democratically recognized right of the citizens guaranteed under the Constitution.
35. The last argument as to the power of the High Court Division to legislate and
create any cognizable offence under Code of Criminal Procedure is a serious issue
which deserves to be dealt with at a considerable length.
36. Ours is a Constitution based on the spirit of separation of powers. The ‘tripartism’
of separation of powers envisioned by Montesquieu, evolved into a philosophy in the Constitution of United States and was further refined in “The Federalist”.
37. Madison writing in the Federalist stated that the three branches of the federal government were to be separate, each serving as a check upon the othe-Although not totally separate, the viability of each branch was guaranteed by giving it sufficient power to defend itself against the actions of the other branches. Furthermore, when any branch overstepped its constitutionally defined role, the other branches could act to check the
abuse.
38. According to Madison “mankind is moved less by reason than by passion, less
by benevolence than by self-interest”. As Alexander Hamilton put it: “Why has government been instituted at all? Because the passions of men will not conform to the
dictates of reason and justice without constraint” (Federalist, no. 15) . Separated powers along with checks and balances are prominent among the several “interior” and “exterior” constraints described in The Federalist, nos.10,47,51.
39. Mr. Justice Brandeis aptly held in “Myers V. United States” 272 U.S. 52,71,L.Ed.l60 “The doctrine of Separation of Powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.”
40. It is taie that there is no such thing as absolute or unqualified separation of power in the sense conceived by Montesquieu but there is however a well marked and clearcut functional division in the business of the Government and our judiciary is to oversee and protect the oversteppings not only of other orgaus of the Government but also of itself.
41. It is pertinent to mention that offence has been defined in Section 40 of the Penal code of 1860 as to denote a thing punishable by Penal Code and the Code of Criminal Procedure of 1898 defines offence as to mean an act or omission made punishable by any law for the time being in force.
42. In such view of the matter offence can be created only by a law, by an act of the
Parliament and not by any legal pronouncement by any court.
43. In the premises aforesaid the High Court Division acted beyond its authority in entering into the field of making law and to declare the pro-hartal and anti-hartal
activities as cognizable offence.
44. In view of our discussions as above, we hold and observe as under:
a) In the absence of any proceeding pending in any inferior Criminal Court or before it the High Court Division had no jurisdiction under Section 561A of the Code of Criminal Procedure to issue a suo moto Rule upon the opposite parties in the Rule.
(b) The High Court Division had no Constitutional or Judicial power to legislate or create of its own a cognizable offence.
(c) Hartal if enforced through force or violence or threat of force or violence will not only be illegal but will Constitute cognizable offences punishable under the Penal Code and other penal laws of the country and any Government worth the name will be duty bound to protect the people by bringing to book the offenders regardless of what party they belong.
(d) No issue was raised in this appeal about the legality or desirability of hartal.
The virtue and vices of hartal is a political Appellate Division Cases question and this court in exercise of its (Criminal) judicial self restraint declines to enter into such political ticket particularly in absence of any Constitutional imperative or compulsion.
45. With the above findings and observa tions the appeals are allowed. The impugned judgment and order of the High Court Division is set aside. There shall be no order as to costs.
Source : V ADC (2008), 150