Mohammad Ullah (Appellant)

Vs.

Sessions Judge, Noakhali having office at Maijdi Court, Noakhali and others (Respondents)

Supreme Court

Appellate Division

(Civil)

JUSTICE

Syed J.R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

Judgment dated : November 22, 2005.

Cases Referred to-

State Vs. Golam Mostafa and others, 49 DLR (AD) 32; Yousuf Ali Mollah Vs. King, AIR 1949 PC 264, 1911, 1 K.B. 964; Gopinath Ghosh V. State, 32 DLR (AD) 177; Md. Srafiullah V. The State, 19 DLR 225.

Lawyers Involved:

Md. Nawab Ali, Advocate-on-record-For the Appellant.

Md. Aftab Hossain, Advocate-on-Record-For Respondent No. 3.

Abdur Razzak Khan, Additional Attorney General-Amicus Curiea.

Not represented- Respondents Nos.1-2.

Civil Appeal No. 08 of 2001

(From the judgment and order dated 18th November 1998 passed by the High Court Division in Writ Petition No. 3501 of 1997).

JUDGEMENT

Mohammad Fazlul Karim J. – This appeal by leave is directed against the judgment and order dated 18th November 1998 passed by a Division Bench of the High Court Division in Writ Petition No.3501 of 1997 discharging the rule.

2. The rule was issued by the High Court Division on an application under Article 102 of the Constitution of the People’s Republic of Bangladesh upon the respondents to show cause as to why the order dated 26th November, 1996 passed by the Sessions Judge, Noakhali in Miscellaneous Case No.353 of 1996 for fresh trial in G.R. Case No. 1 of 1983 of the Court of Magistrate. First Class, Noakhali should not be declared to have been passed without lawful authority and why direction should not be made for quashing the proceedings against the appellant in the aforesaid G.R. Case No.1 of 1983 stating, inter alia, that the appellant joined service under the Government as Typist in 1967 and later on become Stenographer, in Noakhali Judgeship in December, 1975. The dead body of Ziauddin Mahmud alias Firoj, son of respondent No.3 missing since 29.12.1982, was discovered on 1.1.1983, whereupon U.D. Case No.1 of 1983 was registered with Sudharam Police Station. Appellant was arrested in connection with the said case on 3.1.1983. Sagir Ahmed, Sub-Inspector of Sudharam Police Station lodged suo moto First Information Report on 5.1.1983 and after investigation charge-sheet was submitted against the appellant and 6 others on 20.4.1983 under sections 364/302/201 read with sections 34, 109 and 120B of the Penal Code alleging, inter-alia, that they in conspiracy with each other killed Ziauddin Mahmud alias Firoj, minor son of respondent No.3, due to long standing enmity and grudge. This case was registered as G.R. Case No.1 of 1983 and on the prayer of the Investigating Officer Altaf Hossain, C.I.D. made on 20.4.1983 the case was transferred to the Special Martial Law Court No.4, Comilla by the Zonal Martial Law Administrator, Zone-D, Comilla for trial (vide Index Nos.7 and 8). The Special Martial Law Court No.4, Comilla upon trial convicted the appellant and co-accused Md. Hossain and Md. Yakub and sentenced each of them to imprisonment for life by judgment dated 15.3.1984. Appellant suffered rigorous imprisonment from 15.3.1984 to 16.11.1991 i.e., 8 years 10 months and 14 days and he was released from jail upon declaration of general amnesty by the then Acting President. On release from jail the appellant filed Writ Petition No.3832 of 1992 challenging the legality and validity of the order of sentence passed by the Special Martial Law Court No.4, Comilla in Special Martial Law Case No. 24 of 1983. The rule was ultimately made absolute and order of conviction and sentence passed in the said case had been declared to have been passed without lawful authority vide judgment dated 21.4.1994. The appellant who was suspended from service by order dated 6.7.1983 and dismissed by order dated 17.4.1988, was reinstated under order of the Government dated 30.3.1995 and the petitioner joined his post on 17.4.1995 and was paid all arrear remuneration and allowances admissible under the rules. While in police custody after arrest on 3.1.1983 the police severely tortured the appellant for getting confessional statement implicating himself with the death of the son of respondent No.3 and such torture resulted in left thumb fracture and injury to other parts of the body and he had to be in the Noakhali Jail Hospital from 8.1.1983 to 21.7.1983. The fact of torture was brought to the notice of the Sub-Divisional Magistrate, Noakhali on 13.1.1983 and also the Sessions Judge, Noakhali and the Sessions Judge passed order on the appellant’s application for taking necessary action. After disposal of the said Writ Petition No.3832 of 1992 the appellant instituted Money Suit No.3 of 1995 in the Court of Subordinate Judge, Noakhali against Bashir Ahmed. Most. Hasna Hena Begum, Nazrul Islam, Mohammadullah alias Madhu, Abdul Matin and Abul Hashem as principal defendants and Deputy Commissioner, Noakhali and Home Secretary, Government of the People’s Republic of Bangladesh as proforma defendants for damage for malicious prosecution and wrongful imprisonment. At the instance of the respondent No.3 the said suit has been transferred to the Subordinate Judge, First Court, Dhaka and the suit is pending in the said Court. Respondent No.3 submitted an application before the Sessions Judge, Noakhali praying for fresh trial of G.R. Case No.1 of 1983 and thereupon Miscellaneous Case No. 353 of 1996 was registered in the Court of Sessions Judge, Noakhali, who, without issuing any notice, passed order on 26.11.1996 for fresh trial of said G.R. Case No. 1 of 1983 and the Magistrate, Noakhali was directed to send the records of Special Martial Law Case No.24 of 1983 which was in his custody under the Chief Martial Law Administrator’s order conveyed under Memo No.6506/20/M.L.-2(A) dated 22.3.1986. The appellant had been prosecuted and punished for the offence relating to death of Ziauddin Mahmood alias Firoj and he had suffered imprisonment from 15.3.1984 to 16.11.1991 pursuant to the judgment dated 15.3.1984 passed upon trial of Special Martial Law Case No.24 of 1983. As such, if fresh trial takes places in pursuance of the Sessions Judge’s order dated 26.11.1996 in Criminal Miscellaneous Case No.353 of 1996, such prosecution will be a violation of the fundamental right guaranteed to the appellant under Article 35(2) of the Constitution of the People’s Republic of Bangladesh.

3. Upon hearing the parties a Division Bench of the High Court Division discharged the rule by judgment dated 18th November, 1998 holding, inter alia, as follows:

“We have considered the case of Md. Srafiullah V. The State (19 DLR 225) and we find that in that case the trial was held by a competent Criminal Court which found that the prosecution was void as the previous sanction of the appropriate Government was not obtained and in considering the question of retrial the Court refused to pass such an order on the ground that the accused has suffered from incompetent prosecution for no fault of his own. But the facts of the present case are quite distinguishable. In the present case the G.R. Case No. 1 of 1983 was not transferred to the Special Martial Law Court at the instance of the prosecution rather the Zonal Martial Law Administrator sue moto transferred the case. The said transfer of the case to the Special Martial Law Court was without jurisdiction and the Special Martial Law Court had no authority in law to try the case. Thus the entire trial was illegal and without jurisdiction and hence void. So, the trial in question was no trial in the eye of law.”

“……Thus the whole basis of section 403(1) of the Code of Criminal Procedure as well as Article 35 (2) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal; if the Court is not as competent the whole trial is null and void and it can not be said that there was any conviction or acquittal in force within the meaning of section 403(1) of the Code of Criminal Procedure or Article 35(2) of the Constitution. Such a trial does not bar a subsequent trial of the accused. But we find it difficult to accept the submission because it is now well settled that either to attract Article 35(2) of the Constitution or the provisions of section 403(1) of the Code of Criminal Procedure the first trial must have been before a Court competent to bear and determine the case and to record a verdict of conviction or acquittal. In the instant case the prosecution was incompetent and void for want of jurisdiction. So was in the 19 DLR case. In the 19 DLR case the High Court did not pass an order of retrial on the ground that the accused suffered from incompetent prosecution but in the present case the prosecution was not at fault. The case was not transferred to the Special Martial Law Court at the instance of the prosecution rather the Zonal Martial Law Administrator suo moto transferred the case to that Court.

The prosecution had no role to play in the matter of transfer of the case.”

4. The appellant thereafter obtained the leave to consider the submission of the learned Counsel for the appellant that:

“Mr. Khandker Mahbubuddin Ahmed, learned Advocate appearing on behalf of the petitioner submits that this petitioner having suffered imprisonment for over nine years in a previous incompetent trial and the trial by the incompetent Court having taken place for no fault or act of the petitioner fresh trial as ordered by the learned Sessions Judge, Noakhali should not be allowed to proceed and this Court under this peculiar circumstances may act under Article 104 of the Constitution of the People’s Republic of Bangladesh to meet the ends of justice. It is also submitted that fresh trial of the petitioner is improper when he had suffered imprisonment from incompetent prosecution for no fault of his own but for the fault of the prosecution.”

5. Mr. Md. Nawab Ali, the learned Advocate-on-Record appearing for the appellant submits that admittedly trial of the appellant was held by the Special Martial Law Court in Special Martial Law Case No.24 of 1983 and sentencing to suffer imprisonment for life in G.R. Case No.1 of 1983 and thereby has already undergone imprisonment for about 9 years prior to his release pursuant to general amnesty declared by the President of the country. Under the provision of section 403(1) of the Code of Criminal Procedure and Article 35 of the Constitution the appellant could not be tried in the self same G.R. Case No.1 of 1983 offending the fundamental right of the appellant that he shall not be prosecuted or punished for the same offence more than once. The learned Advocate-on-Record has further submitted that the High Court Division on misconception of fact of the instant case has failed to apply the decision in the case reported in 19 DLR 255, contrary to the principle of autrofois acquit i.e. as the appellant shall not be allowed to be tried twice for the self same offence for no fault of his own.

6. It appears from the record that G.R. Case No.1 of 1983 upon submission of the charge-sheet was pending for trial before the Sub Divisional Magistrate, Sadar, Noakhali under section 364/302/201 read with section 34/109/120B of the Penal Code awaiting to be transferred to the Court of Sessions Judge, Noakhali for trial but on an application by the 1.0. made on 20.4.1983 the case was transferred to the Special Martial Law Court No.4, Comilla by the Zonal Martial Law Administrator, Zone-4 on 30.6.1983 for trial and the case was registered as Martial Law Case No.24 of 1983 after trial, the said Court by its judgment and order dated 15.3.1984 found the appellant and co-accused Md. Hossain and Eaqub guilty under section 302 of the Penal Code and sentenced to them suffer imprisonment for life which was admittedly confirmed by the Chief Martial Law Administrator on 31.12.1984, the remaining accused, however, having not been found guilty were acquitted.

7. Though the appellant while undergoing the said sentence, upon conviction as aforesaid was released from jail custody pursuant to the amnesty of the President on 6.11.1991 and in order to get back his job upon removal of stigma of the conviction, the appellant challenged the order of conviction and sentence passed by the Martial Law Court on certain grounds in Writ Petition No.3832 of 1992. The High Court Division made the rule absolute quashing the judgment and order of conviction and sentence passed by the Special Martial Law Court, Comilla in Special Martial Law Case No.24 of 1983 being coram non judice having been passed without lawful authority on the finding that:

“…….though we are of the view that normally and ordinarily, the judgment and order of the Martial Law Court passed during the subsistence of the Martial Law Proclamation and can not be challenged even after the withdrawal of Martial Law after it was validiated by the provision of Constitutional safeguard, relying in the principle laid down by our Supreme Court we are of the view that the judgment and order passed in the instant case where the cognizance was taken by the Special Martial Law Court without having jurisdiction is coram non judice and malafide and hence is liable to be quashed.”

8. Thereafter it appears that the respondent No. 3 filed an application to the learned Sessions Judge, Noakhali on 20.10.1996 for fresh trial of G.R. Case No. 1 of 1983 whereupon the Miscellaneous Case No.353 of 1996 was started and the case was fixed on 26.11.1996 for admission hearing. On which date without issuing any notice upon the appellant and in the absence of both the parties passed order for fresh trial of G.R. Case No. 1 of 1983. The appellant thereafter moved the High Court Division in Writ Petition No.3501 of 1996 alleging mainly the violation of the fundamental right of the appellant guaranteed under Article 35(2) of the Constitution alleging that the learned Sessions Judge had no lawful authority and jurisdiction to order of such fresh trial under any provision of the Code of Criminal Procedure.

9. The ancient maxim “Nime Bis Dengpuniri pro uno Die cte” meaning thereby that no one ought to be twice punished for one offence which is presently a popular maxim “autrofois convict” or “autre fois acquit” (principle of double jeopardy).The   said maxims have been illustrated in Halsbury’s Laws of England as under:

“The plea of “autra fois convict” or “autre fois acquit” appeared that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The question for the jury on the issue is whether the defendant has obviously been in jeopardy in respect of the charge on which he is arraigned, for the Rule of Law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts reliefs claimed by the crown are the same in the two trials.” (vide Halsbury’s Laws of England Halicham Edition Vol. 9, para 212).”

The said principle found recognition in section 26 of the General Clauses Act, 1897 as under:

“Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

The Code of Criminal Procedure also provides in section 403(1) as under:

“A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 238.”

As mentioned above our Article 35(2) of the Constitution also reads as under:

“No person shall be prosecuted and punished for the same offence more than once.”

The Fifth Amendment of the American Constitution enunciated this principle in the following manner:

“……nor shall any person be subjected for the same offence to be twice put in jeopardy if life or limb, nor shall be compelled, in any Criminal Case, to be witness against himself…….”

The word “prosecuted” as mentioned in Article 35(2) above means according to Black’s Law Dictionary, 7th Edition by Bryan A. Garden, Editor-in-Chief “to commence and carry out a legal action, or to institute and pursue a criminal action against the person”.

10. As regards prosecution which could be said to be without jurisdiction or coram non judice or a sham prosecution that seeks to circumvent a defendant’s double jeopardy protection when it is in fact controlled by the sovereignty that already prosecuted the defendant for the same crime. A sham prosecution is in essence, a misuse of the dual-sovereignty rule. Under that rule, a defendant’s protection against double jeopardy does not provide protection against a prosecution by a different sovereignty.

11. The principle laid down in section 403(1) of the Code of Criminal Procedure speaks about trial of the accused of the offence charged against him and the trial must have been by a Court of competent jurisdiction for an offence and there must have been a judgment of conviction or acquittal of such offence.

12.  In the case of Gopinath Ghosh V. State reported in 32 DLR (AD) 177 it has been held that the doctrine of previous acquittal or previous conviction known in English Common Law as autre fois acquit or autre fois convict has been embodied within language of section 403(1) of the Code of Criminal Procedure. The underlying principle is that if a person has been tried by a competent Court for an offence and has been either convicted or acquitted of such offence he shall not be tried again for the same offence or on the same facts for any other offence for which a different charge might have been made under section 236 of the Code of Criminal Procedure or he might have been convicted under section 237 of the Code of Criminal Procedure.

13. Similar is the case with Article 35(2) of the Constitution which speaks about prosecution and punished but does not mention about a trial by a Court of competent jurisdiction.

14. Similar is the provision under section 26 of the General Clauses Act, 1897 which speaks for prosecution and punishment barring a fresh prosecution or punishment for the self same offence more than once.

15. The High Court Division, however, rightly interpreted the word “prosecution” with reference to principle laid down in the decisions in the subcontinent and United Kingdom in the cases of Yousuf Ali Mollah Vs. King reported in AIR 1949 PC 264, 1911, 1 K.B. 964 and the decision of reported in 19 DLR 255 and were correct in holding that the prosecution must be by a Court of competent jurisdiction and not otherwise. But in the case of State Vs. Golam Mostafa and others reported in 49 DLR (AD) 32 the Sessions Judge acted illegally in deciding the case upon the evidence recorded by the Special Martial Law Court. The Appellate    Division observed as under:

“The learned Deputy Attorney General submitted that an order of re-trial, even at this stage by this Division, would serve the ends of complete justice in the facts of this case of a deliberate and calculated murder. Perhaps we would have argued if the prayer was made soon after the impugned judgment was passed by the High Court Division in 1990. The respondent had been in custody for about 4 years since the order of conviction and sentence was passed upon them by the trial Court and a further six years have gone by since the passing of the impugned judgment by the High Court Division. If the Government was earnest and serious for a re-trial in the interest of justice, as it is said now, it should have moved this Division at least for an early hearing of this appeal which could have been done 4/5 years before. It seems that it was nobody’s concern at any stage of the proceeding and to ask for an order of re-trial from this Division after fourteen years of the occurrence can hardly or should not be; considered as a genuine prayer for the sake of justice. It has been noticed that the State got two opportunities before the Sessions Judge to examine their witnesses and to get the case tried on merit but for whosever’s faults the opportunities were not seized upon. After a lapse of fourteen years now it will be a far cry for the prosecution to bring all the necessary evidence which it failed to produce earlier whatever be the reason. In the circumstances of the case, we do not think it just and proper to direct a re-trial and thereby put the respondents to another period of harassment for further few years in the hand of an inept prosecution.”

16. We are tempted to adopt the said principle of law in the instant facts of the case wherein proceeding was pending in the normal Criminal Court before it was transferred to the Sub Divisional Magistrate, Sadar, Noakhali and upon charge-sheet the case was trible by the Sessions Judge, Noakhali and in due process was waiting to be tried as such but for no fault of the appellant the same was transferred to the Court of Special Martial Law, Comilla at the behest of the complainant respondent No.2 and was tried there illegally convicting the appellant and two others under section 302 of the Penal Code and sentenced to suffer imprisonment for life, and the appellant was released from jail custody on amnesty after suffering the sentence in accordance with law. But upon an application under Article 102 of the Constitution the said conviction and sentence was quashed as coram non judice by the High Court Division and declared the order of conviction and sentence passed by the Special Martial Law Court, Comilla in Special Martial Law Case No. 24 of 1983 to have been passed without lawful authority on the finding that the cognizance was taken by the Special Martial Court No.4 at a time when the case was actually before him by an order of the authority having no power to transfer the case from the Court of General Criminal Jurisdiction and hence the Special Martial Law Court has not been vested with the jurisdiction of trying the case and pass the order of conviction and sentence. Moreover, there was no order by the High Court Division while disposing of the writ petition for retrial of the case and accordingly the appellant is left with the distinguishing fact in the instant case and after lapse of about 20 years now it will be far cry for the prosecution to bring all necessary evidence once again before the learned Sessions Judge. Admittedly, the appellant was in custody pursuant to conviction and sentence by Special Martial Law Court for a long period of more than 10 years out of 14 years’ sentence then prescribed for a convict undergoing sentence of imprisonment for life under the law and has suffered substantial conviction for the selfsame offence.

17. In view of the above, we are of the view that it will not be just and proper to proceed with the prosecution afresh thereby putting the appellant to suffer the rigors of fresh trial in G.R. Case No.1 of 1983 of the Court of Sub Divisional Magistrate, Sadar, Noakhali now taken cognizance of by the Sessions Judge by its order dated 26 November 1996 in accordance with law.

18. In view of the above, in order to secure justice the appeal is allowed and the impugned judgment and order of the High Court is set aside and consequently the order of the learned Sessions Judge. Noakhali vide order dated 26th November 1996 in Miscellaneous Case No. 353 of 1996 for fresh trial of G.R. Case No. 1 of 1983 is hereby quashed to secure ends of justice.

Ed.

Source : (XVI) BLT (AD) 34