Topic: Reference jurisdiction of Supreme Court: an evaluation
Jurisdiction (from the Latin us, iris meaning “oath” and dice re meaning “to speak”) is the practical authority granted to a formally constituted legal body or legal power (from the Latin us, iris meaning “oath” and die re meaning “to speak”) is the practical authority granted to a formally constituted legal body with and do dictums on legal matters and, by entailment, to administer justice within a defined area of obligation.
1972, the supreme court of Bangladesh is created by the commissariat of the constitution of Bangladesh i.e. (a) Appellate Division and (b) High Court Division. Usually does not exercise the powerfulness’s of a court of first instance and appellate division is the highest court of appeal. Admiralty matters and whereas, the high court division is a court of first instance in company.
On 29 3 2007 this application under section 498 of the code of criminal procedure with a prayer for anticipatory bail, was placed before this court in connection with g r case no. 2007 arising out of Dighalia Police Station Case No. 8 dated 31. 1. 2007 under Section 25 of the Special Powers Act, 1975 now pending in the Court of Magistrate, 1st Class and Cognizance. Court ‘KA’ Anchal Khulna and in course of hearing of the said application Mr. Golam Mohammad Chowdhury, learned Deputy Attorney General pointed out before this Court the provision of Section 19 Gha of the Jaruri Khamata Bidhimala 2007 as amended by S.R.O. No. 30-Ain/2007 hereinafter referred to as “the said Rules” and submitted that in view of the aforesaid provision of the said Rules this Court is precluded from exercising the power under Section 497 and 498 of the Code of Criminal Procedure. The submission made by the learned deputy Attorney General having touched the very jurisdiction of this Court in exercising its power under the aforesaid provisions of Code of Criminal Procedure, we thought it proper to resolve the question first before proceeding with the case any further and in doing so we also felt it necessary to take assistance from the senior members of the Bar as Amicus Curie. Accordingly, we invited some senior members of the Bar for the purpose, to address the Court on the point of jurisdiction of this Court. Consequently the learned Counsels Mr. Khondker Mahbub Uddin Ahmad, Mr. Rafiq-ul Huq, Mr. Abdul Wadud Bhiyan, Mr. Md. Rowshan Ali and Mr. A. Hasib appeared as amicus curie, besides, Mr. Abdul Matin Khasru learned Counsel appeared in support of the application before us and addressed the Court on the point raised. Before proceeding with the question of jurisdiction of this Court we choose to quote the provisions of law which is being considered by this Court and the same is an amendment to Jaruri Khamata Bidhimala (Emergency Powers Rules) 2007 namely the said rules made by S.R.O. 30-Ain/2007 published in the Bangladesh Gazette on March 21, 2007 and the relevant part of the said Legislation reads as under.
19. Commissariat with consider to crimes under these rules: Until the emergency is in consequence, trial and investigation of those crimes under this rules and punishable not more than 5 years of rigorous imprisonment, will be carried on according to the speedy trial act 2002.
19A. Duration of case disposal – (1) Under commissariat or notwithstanding whatever is stated in any law in force at present, in the period of enforcement of the declaration of the state of emergency, any case filed under the commissariat of this rules 14 and 15 is to be settled within 45 (forty five) days from the date of commencement of trial in any court or tribunal.
(2) Court, or if the colony of the case appears impossible due to some unavoidable reason, the court., by apprising the reason, can settle the difference of opinion within the next 30 (thirty) days and will inform the supreme court about the time extension in indicting and send a copy thereof to the authorities..
(3) If the colony of the case becomes impossible within the period cited in sub clause
(4) Court, by apprising the reason, can take even 15 (fifteen) days or due to some legitimate reason, the court further to settle the dispute and will inform the Supreme Court in writing about the time extension and send a copy thereof to the government.
19B. Adjournment of trial– (1) If the trial of a suit filed under any provision cited in this rules or if the trial of a case filed under any provision cited in this rules 14 and 15 Court in the period of enforcement of the declaration of the state of emergency or begins in any court, t will go on uninterruptedly until settlement, but if the court or it will continue uninterruptedly until colony, but if the court, it can do so for not exceeding 3 (three) days.
(2) Court will not adjourn the trial of a case in such a fashion or under the sub clause (1), the court. That the trial of the case stands impossible within the period stipulated under the provision 19(A).
19C. Accountability of courts, tribunals etc. – In the case of non colony of a difference of opinion within the period stipulated under the provision 19(A), Court, the public prosecuting attorney, the law and order enforcing agency, or the accountability of the court 15, The concerned constabulary military officer by applying the or any human related to the trial will be ensured the provision 15 with necessary adaptation.
19D. Rules related to bail. – Court during the inquiry or in the period of enforcement of the declaration of state of emergency, the accused cannot appeal for bail to any court, Probe and trial under any act mentioned in this proviso or investigation and trial under any act cited in this provision 497 and 498 of Code of Criminal Procedure or in any other Act; By some other co accused like his married woman provided that in the case where the principle accused is accompanied, Sis or offspring under age of 18, bachelor daughter, female parent, female parent in law, The court, having recorded the appropriate reason, can consider bail in reaction to an application on behalf of the co accused or the court.
19E. the nature of the order of the courts or tribunals. – In the period of enforcement of the declaration of the state of emergency, it is not permitted to ask for any remedy or to dispute any injunction, except the final verdict, in any higher court or tribunal during probe, case filing or First Information Recording, investigation, pre trial procedures or during the trial under any act mentioned in this provision or provision 14 and 15.
19F. Verification of income tax certificates etc.- during investigation of corruption cases and placing it as evidence.- (1) In the period of enforcement of the declaration of state of emergency, the investigating officer, in investigating into the corruption cases, can inspect, examine and seize income tax certificates and other tax certificates, bank account or other accounts in other financial or other types of associations or institutions for the sake of investigation, if necessary, taking permission from Anti-Corruption Commission, National Board of Revenue, ministry of home, Bangladesh Bank or related other organizations, notwithstanding anything stated in the Income Tax Ordinance, 1984 (Ord. No. XXXVI of 1984) or any other Acts.
19G. Witness-value of pictures recorded in camera etc.- Under the state of emergency, during the trial of any case under any act mentioned in this provision or provisions 14 and 15, any moving or still picture of the crime scene or related other photograph, tape, disk, information or any other related element captured by law and order forces, commission executive, or any other person so empowered under this rule is admissible as evidence given that depending upon that evidence only the court or the tribunal can penalize the accused .
19H. Witness of experts etc.- Commissariat 14 and 15, if the court necessitates the witness of some forensic expert or during the trial of any case under any act cited in this provision, Other expert who has previously examined the things and submitted a report to the authority or choreographer, horologer, am munitions expert, bank account auditor, income revenue enhancement auditor He is incapable of being an witness, or he is missing or the cost, attempt and difficulty or but now it is not feasible to lay him before the court because either he is exceeds, the court cannot penalize the accused or exceeds the anticipated degree, his signed report is admissible as evidence, provided that depending upon only that evidence the court.
19 I. In absence of the witness trial.- (1If the accused is cited as absconding in the report of investigation of any crime filed under any act cited in this rules, during the state of emergency or clause 14 and 15, and if The court reasonably believes that the accused human is deliberately hiding to escape arrest and facing trial or the court, the court or the tribunal will attach one notice in an easily visible place of the court building or the tribunal and one in the last residence or office of the accused specifying the time limit, not exceeding three days, and order the accused to attend the court within that time and if he fails to do so in the stipulated time, the court or the tribunal will continue trial in his absence.
(2) A notice served under the sub-clause (1) is considered to be served individually on the accused.
19J. Special provision regarding the application of the Rules. – (1) Whatever may be in other Acts or in this Rules , if the provisions of this Rules if to be applicable to the investigation, trial, appeal, bailment and such other related affairs, an approval is to be taken from the government or other authority.
(2) The government or other authority, by a written general or special injunction, can designate a subordinate officer the power of approval under sub-clause (1).
(3) In an approval given under sub-clause (1), a statement must mention “Provisions under Emergency Power Rules, 2007 is to be applied”
(4) In giving approval under sub-clause (1) and (2), the approving officer must ascertain the impact of the crime on the people.
(5) Under the provision of clause 14—
(a) Starting from the date of validation of this Rules up to March 20, 2007 and
b) From 21 March, 2007 onward up to the gazette notification of this Rules, under Sections 161, 162, 163, 385, 386, 387, 401, 406, 408, 409, 420, 423, 467, 468, 471, 477 of Penal Code (Act XLV of 1860) and filed under other acts mentioned in clause 14 any case, within ten days of the gazette notification of this Rules, can be admissible retrospectively under the clause (1).
(6) If not approved under sub-clause (5), after the expiry of the period stipulated under the clause, no clauses of this Rules including the clause 19D regarding bailment shall be applicable in any trial under the sub-clause.
From a plain reading of the said rules we find that the expression which has been pointed out before us and we have been called upon to find out the meaning and intention of the framers of the law such expression reads as under: “Any Court or Tribunal” appears in 19 (Gha) in the said Rules as has been quoted above.
The same experience is available in 19Ka (1), and in 19Kha (1), therefore, let us confine ourselves to the meaning and intention of the expression as available in 19Ka, 19Kha and 19Gha.
In perspective of the absence of an explicit expression the principles enunciated in the case of secretary of state Vs. Mask and Co. Where the judicial commission of the privy council has held that “the exclusion of the jurisdiction of civil courts reported in an I r 1940 (pc) 105 has been attracted (here in this case the High Court Division is not to be readily inferred) But such exclusion must either be explicitly evinced or but such exclusion must either be explicitly expressed for exclusion of jurisdiction of this court is totally absent the explicit expression as required of course, In our own jurisdiction a long line of conclusions we have following the Privy Council decision in the Mask case, Jamil Hoque and 11others Vs. Bangladesh reported in 34 D.L.R. (AD) 125 may be referred to where It has been held by our apex judicature that curtailment of legal power can be done by an appropriate legislation b evince words and it has been held by our apex court that curtailment of jurisdiction can be done by an appropriate legislation b evince words. Therefore, the question of implied exclusion had been excluded by the decision reported in 34 D.L.R. case going a step further to the Privy Council decision as referred to above. The same decision of our apex court has also enunciated the principle that the “Legal power of the superior judicatures, are not to be interpreted to have been took away and if this is so intended it may be done by the appropriate legislative or jurisdiction of the superior courts, are not to be construed to have been taken away and if this is so intended it may be done by the appropriate legislative.” We have already noted the submissions made by Mr. Bhuiyan and by the learned Additional Attorney General whereby it is argued that this Court is also covered by the operation of Section 19Gha the amended provision of the said Rules thought not by explicit expression but by necessary implication. In answering such submission it may be pointed out that in that case what happens to the expression namely, “Any Court and Tribunal” as available in 19Ka and 19Kha where no other inference is possible other than the Court or the tribunal where the trial is supposed to take place. How then the same expression can disclose a different meaning in the same legislation in a different provision namely 19Gha thereof. An affirmative answer to that question is hardly conceivable. Therefore the question of necessary implication as argued by Mr. Bhuiyan and supported by the learned Additional Attorney General appears to have no substance particularly in view of the aforementioned position in the same legislation. Citing examples to explicit expression Mr. Huq has rightly referred to two other similar legislations. One of which is available in Martial Law Order No. 14 of 1982 promulgated on March 27, 1982 precluding all Courts from granting ad-interim injunction or stay and the language relevant for our purpose is as under.
Legislative mandates evinced through statutes remainders clearly upon the executive and the obligation for effective capital punishment of constitutional mandates and Judges cannot take the perspective that infractions of rights involved in such and constitutional obligations, courts defaults are no concern of theirs. If the duly authorized constitutional officers fail to discharge their constitutional and if the duly authorized constitutional military officers fail to discharge their constitutional, a judicial activist is justified in issuance directions to them to discharge their duties expeditiously; in ordering expeditious trials such a judge might feel more than warranted or such a judge might feel more than justified in ordering expeditious trials. Debasing, such a judge may order creation of minimum facilities and if conditions in goals are inhuman. Equal pay Acts or if the relevant committees under such social legislation as the bonded labor are not launched, are not established.
1. Retrieved from: http://www.lawyersnjurists.com on 30th Oct, 2010 at 10.30 P.M.
2. Retrieved from: Judicial system of Bangladesh: Problem, Power http://www.nationsencyclopedia.com/Asia-and-Oceania/Bangladesh-JUDICIAL-SYSTEM on 31st Oct, 2010 at 10.30 P.M.
3. Rahman. S. “The Jurisdiction of Bangladesh”
4. Retrieved form www. Wikipedia. Org about Judicial Power on Nov 01, 2010 at 1.30 A.M
5. Http://bangladeshbarcouncil.org/- evaluation about the Jurisdiction.
6. Discuss with some lawyer about the topic.
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 Bangladesh Bar Council association
 G.R. Case No. 8 of 2007 arising out of Dighalia Police Station Case No. 8 dated 31. 1. 2007 under Section 25 of the Special Powers Act, 1975 now pending in the Court of Magistrate
 (Act 11 of 2002) in a way as if the crime is exactly what is embodied in article 2 (b) of the Act and will be tried under the article 9 of the Act.
 Speedy Tribunal Act, 2002 (Act No. 28 of 2002)
 In 19Ka the expression as available under the heading “Duration of resolving case” (Translated from Bangla to English) it is not disputed that the same provision is meant only for the trial Court or Tribunal where trial is supposed to be held. Referring to this position available in the legislation itself the learned Counsel Mr. Khondker Mahbub Uddin, Dr. Kamal Hossain, Mr. Rafiq-ul Huq and Mr. Mahmudul Islam has pointed out the conspicuous absence of an explicit expression in the statute to include the Supreme Court under the provisions of 19Gha of the amended provision of the said Rules
 “(The) Constitution is a living document which portrays the aspiration and genius of the people and aims at creating progress, peace, welfare, amity among the citizens and the nations abroad; it is the basic structure on which the entire edifice is built, therefore, it has to be interpreted in a manner which may keep it alive and blossom under all circumstances and in every situation … While interpreting Constitutional provisions Courts should keep in mind, social setting of the country, growing requirements of the Society/nation, burning problems of the day and the complex issues facing the people, which the Legislature in its wisdom through legislation seeks to solve – Judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.”