Abul Kalam Azad Vs. Mohmmad Iqbal Hossain

Appellate Division Cases

(Criminal)

PARTIES

Abul Kalam Azad and others…………………….. Appellants

-vs-

Mohmmad Iqbal Hossain & Ors ………………….Respondent

JUSTICE:

Syed J. R. Mudassir Husain, C.J

Mohammad Fazlul Karim. J

M. A. Aziz. J

Amirul Kabir Chowdhury. J

JUDGEMENT DATE: 5th April 2004.

The Constitution Article 103 (2)(c).

14 DLR (SC) 273 and 15 DLR (SC) 150.

We have heard the learned Counsels for the parties and considered the facts and circumstances of the case together with the unqualified and unconditional apology with an undertaking not to repeat the offence again. Since the dispute arose over the continuation of the Managing Committee upon formation of the Ad-hoc Committee giving rise of certain misapprehension and misconception regarding issues we are accepting the unqualified and unconditional apology on behalf of the appellants and accordingly set aside the impugned judgment and order of guilt of the appellants for contempt of Court. ………………………..(6)

Criminal Appeal No. 14 of 2003 (From the judgment and order dated 17 March 2003 passed by the High Court Division in Contempt Petition No. 84 of 2002).

Md. Fazlul Karim, Senior Advocate, (Golam Mahiuddin, Advocate with him),instructed by Md. Nawab Ali, Advocate-on-Record………………. For the Appellants.

Rabeya Bhuiyan Senior Advocate, instructed by Md. Aftab • Hossain ,Advocate-on-

Record…………………………. For Respondent Nos. 1-4

Not represented…………………………. Respondent Nos. 5-6

JUDGMENT

1. Mohammad Fazlul Karim, J :- Upon an application for drawing up contempt of Court a contempt Petition No. 84 of 2002 arising out of Writ Petition No 1010 of 2002 was filed on 16 November 2002 whereupon a rule was issued calling upon the appellants and others to show cause as to why contempt proceeding should not be drawn up against them and/or pass such other or further order or orders as may deem fit and proper.

2. The respondents alleged that inspite of order of the High Court Division the Managing

committee which was constituted on 12.12.2000 was never allowed to function. Moreover, another Ad-hoc Committee was constituted and election was held fro regular committee and regular committee was also constituted on 9.1.2003 . It has also pointed out that some of the respondents moved the Appellate Division for staying the operation of the judgment of this court which was passed 24. 07. 2002. The operation of the judgment was stayed for 2 weeks by an order of the Appellate Division dated 29.7.2002 but after the expiry of the stay, though the respondent made a prayer for extension of the stay the prayer was refused on 12.8.2002 and thereafter there was no stay of the operation of the judgment. Inspite of the fact that there was no stay, the legally constituted

Committee was allowed to function. So accordingly the action of the respondent condemners amounts to violation of the order of the Court passed in Writ Petition No. 1010 of 2002.

3. The appellants, however, submitted that Ad’hoc Committee was constituted during the

stay granted by the Appellate Division which was in force till 12.08.2002 . So, it was submitted that constitution of Ad-hoc Committee was not a violation and it was done in accordance with the Regulations as the term of the earlier Committee already expired and tried to impress upon that this was done for the betterment of the School and for day to day functioning of the School. It was also submitted that as the term of the second Ad hoc Committee was also going to expire a new Committee was constituted for holding election in accordance with the provisions of the Regulation, 1977 . So, According to

him, nothing was done in violation of the order of the Court and whatever actions taken were done with bonfired belief. It was submitted that when the Appellate Division refused to extend the stay, the learned judge of the Appellate Division in the chamber made an observation to file a regular leave petition to submit an application for stay at a later stage. It was tried to justify the action of the contermmer Nos. 3 5 on the ground that as the question of granting stay was pending before the Appellate Division and as the Judge-in-chamber made the above observation, the respondent contemner Nos. 3-5 took

the actions on bonafide belief. It also referred to two decision reported in 14 DLR (SC) 273 and 15 DLR (SC) 150 and has submitted that the power granted to the Court to decide the question of contempt of Court should be used very sparingly. However, apology was tendered on behalf of the respondent contemner Nos. 3-5.

4. Upon hearing of the rule, the High Court Division make the rule absolute against respondent contemner appellants and sentenced them to pay fine of Tk. 2000/- each within a period of 15 days, in default, to suffer simple imprisonment for one month each. From the said impugned order the appellants moved this Court with this appeal under article 103(2)(c) of the constitution of the People’s Republic of Bangladesh.

5. At the hearing of the appeal the appellants filed an application for accepting unqualified and unconditional apology admitting the guilt stating that they have violated the order dated 24.07.2002 in Writ Petition No. 1010 of 2002 of the High Court Division wherein rule was made absolute directing that the Managing Committee of the School constituted on 12.12.2002 shall be allowed to function upto 11.12. 2003 , the appellant simply regrets and repent and express remorse and sorrow for what they have done in respect of the order dated 27.4.2002 and simultaneously undertook not to repeat the offence again and accordingly beg for unconditional and unqualified apology to the Court and throw themselves at the mercy of the Court.

6. We have heard the learned Counsels for the parties and considered the facts and circumstances of the case together with the unqualified and unconditional apology with an undertaking not to repeat the offence again. Since the dispute arose over the continuation of the Managing Committee upon formation of the Ad-hoc Committee giving rise of certain misapprehension and misconception regarding issues we are accepting the unqualified and unconditional apology on behalf of the appellants and

accordingly set aside the impugned judgment and order of guilt of the appellants for contempt of Court. Accordingly, this appeal is allowed without any order as to costs.

Ed

Source: I ADC (2004), 270

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