Appellate Division Cases
S. M. Jullur Rahman …………………………………Appellant
= Vs =
The government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Law, Justice
and Parliamentary Affairs, …………. ……………….Respondents
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzal IslamJ
April 5th, 2004
Section 492 of the Code of Criminal Procedure. Section 102 of the Constitution of Bangladesh.
The writ petitioner in our view, by any standard/ criteria is not an aggrieved person or in other words is competent to challenge legality of the order….(7)
Civil Appeal No. 45 of 2000 (From the Judgment and Order dated June 29.
1999 passed by the High Court Division in Writ Petition No. 2982 of 1998)
Mr. Md, Mujubur Rhaman, Senior Advocate instructed by Mr. Ataur Rahman Khan. Advocateon-record. … For the Appellant
Mr. Abdul Malek, Senior Advocate, instructed bv Mr. Ad. Aftab Hossain, Advocate-onrecord….For the Respondent Nos. 3-31
Respondent Nos : Not represented.
1. Md. Ruhul Amin J : This appeal by leave is against the judgment and order dated June, 29. 1999 of a Dvision Bench of the High Court Division passed in writ Petition No. 2982 of 1998 discharging the Rule holding “the petitioner has no locus standi”.
2. Facts, in short, are Advocatge Mr. Md. Borhanuddin along with another Advocage Mr. Abul Hossain Talukder were appointed Special public prosecutors to conduct hearing of the Sessions Case No. 120 of 1993 of the 3rd Court of Additional Session Judge, Dhaka. The appointment was made by the Ministry of Law, Justice and Parliamentary Affairs (Solicitor wing) Government of Bangladesh by the letter dated June 8, 1997. By the letter dated September 13, 1998 the Ministry of law, Justice and Parliamentary Affairs cancelled the appointment of Advocate Mr. Md. Borhanuddin. The order of cancellation of the appointment of Advocate Mr. Md. Borhanuddin was challenged by Mr. S. M. Zillur Rahman describing him as the informant of the case which was registered with the Tejgaon Police Station on 9. 7.1992 in connection with the incident of the said date leading to the death of an employee by name Billal Hossain, of Titas Gas Transmissions and Distribution company Limited. It may be mentioned information which was lodged by S. M. Zillur Rahman on 9.7. 1992 over the incident stated above a G. D. Entry was recorded since prior to that already an information was lodged with Tejgaon police Station and a case was registered in respect of death of the employee of titers Gas Company in the incident of 9.7.1992 . It was the contention of Mr. S. M. Zillur Rahman that he, as the informant, being interested in the prosecution of the accused persons who have been placed on trial in Sessions Case No. 120 of 1993 of the 3rd Court of Additional Session Judge and as the Advocate Mr. md. Borhanuddin as Special Public Prosecutor was conducting the hearing of the case with all seriousness as such cancellation of the appointment of said Advocate Mr. Md. Borhanuddin as likely to hamper the proper conducting of the Sessions case and consequent thereupon as there is likelihood of failure of justice, he (S. M. Zillur Rahman ) is Competent to challenge the order of removal of Advocate Mr. Md. Borhanuddin since the action so taken by the Ministry of Law, Justice and Parliamentary Affairs likely to affect proper conduction of the Sessions case No. 120 of 1993 and thereby likelihood of gross failure of justice. It was also the contention of the writ petitioner that removal of Advocate Mr. Md. Borhanuddin from the Office of Special Public Prosecutor and appointment of Advocate Mr. Khandker Abdul mannan as Special Public Prosecutor to conduct the hearing of the Sessions Case No. 120 of 1993 was made to facilitate acquittal of the accused person and las such the order removing the Advocate Mr. Md. Borhanuddin is tainted one and the same has been passed without lawful authority and is of no legal effect. It was the further contention of the writ petitioner that Advocate Mr. Md. Borhanuddin was removed from the office of Special Public rosecutor without hearing him and removal of Advocate Mr. Md. Borhanuddin on the ground of “oiRswffi ^rrfas ^STTBJ” against him was made without disclosing the kind of complaint (s) said to have been received and without affording him opportunity to put his version as regards the so called complaint (s) before passing of the order of removal the from the office of the special public prosecutor as such the order of removal so passed is volatile of the principle of natural justice.
3. The Respondent Nos.l and 2 contested the Rule by filing affidavit-in-opposition. At the time of hearing of the with petition the question of maintainability on the ground locus standi of the writ petitioner was raised by the Respondents. It may be mentioned the writ petitioner is a witness in the Sessions Case No. 120 of 1993.
4. The High Court Division discharged the Rule upon observing “the Public prosecutor does not represent either the public or the informant. The petitioner should have no interest as to who remains as Special public Prosecutor and who should be appointed as Public Prosecutor….the petitioner cannot claim to be aggrieved by the removal of Borhanuddin or the appointment of Mr. Khandker Abdul Mannan as Special Public Prosecutor. In that view of the matter we think that the application is not maintainable on the ground that the petitioner has no locus stand”.
5. Leave is granted to consider the question while diction was given by the appellate Division in the interest of justice to appoint Special public prosecutor to conduct the Sessions Case No. 120 of 1993 impartially whether the said order can be negative by removing the Special Public Prosecutor who had been conducting the case impartially and a partisan lawyer can be appointed in his place.
6. The learned Counsel for the appellant has submitted that the High Court Division was in error in holding that the writ petitioner had no locus stand to challenge legality of the order or removal of Advocate Mr. Md. Borhanuddin from the office of Special public Prosecutor who was appointed in the light of the direction given by the Appellate ivision since the writ petitioner is interested in proper prosecution of the Sessions Case for ensuring justice or in other words to guard against failure of justice. It has also been submitted that the writ petitioner being an informant, in fact writ petitioner is not a informant of the case registered in Tejgaon Police Station and out of which Sessions Case No. 120 of 1993 has arisen is interested to see that the Sessions case is conducted by an able and non partisan Advocate and as such the writ petition so filed questioning legality of the order of removal of an Advocate who was conducting the Sessions Case diligently and in non partisan manner was vary much maintainable. It has also been submitted that the writ petitioner because of removal of Advocate Mr. Md. Borhanuddin having felt that the order of removal so made would cause failure of justice and as such to bring the said fact to the notice of the court by way of filing the writ petition by Mr. S. M. Zillur Rahman was quite legal and valid.
7. The submissions so made in our view is not well merited since a Public Prosecutor is appointed by the Government under Section 492 of the Code of Criminal Procedure as part of its duty to the administration of criminal justice, as such it is the domain of the State to make decision as to appointment of particular Advocate as Special Public Prosecutor to conduct hearing of criminal case in a particular Court. Since the decision as to making appointment of Public Prosecutor is solely of the Government and as such when government feels necessity of terminating appointment of a Publice Prosecutor, questioning legality of termination of such appointment by a person claiming to be the informant of or the witness in the case can hardly be considered legally well onceived or in other words person of said category is not competent to question legality of the action of the Government terminating appointment of a Public Prosecutor, herein Special Public Prosecutor. The writ peritonea appellant tiled the writ petition stating that Government cancelled appointment of Advocate Mr. Md. Borhanuddin to facilitate acquittal of the accused persons upon conducting the hearing of the Sessions Case by Advocate Mr. Khandker Abdul Mannan, a partisan lawyer. Statements so made on their face valor can hardly be accepted since what ever statements have been made in making out a case that advocate Mr. Kahdker Abdul Mannan is partisan lawyer there from it cannot be said learned Advocate would act in conducting hearing of sessions case in question in partisan manner. In our view order canceling appointment of dvocate Mr. Md. Borhanuddin may be challenged by him. which too in our view will not be legally well conceived and which he had done and nobody else on any ground including that there would be fainlure of justice or that justice would be frustrated unless the hearing of the particular case is conducted by a particular Special Public Prosecutor. The writ petitioner in our view, by any standard/ criteria is not an aggrieved person or in other words is competent to challenge legality of the order terminating appointment of Advocate Mr. Md. Borhanuddin who was earlier appointed as Special Public Prosecutor to conduct the aforementioned Sessions Cases. In view of our discussions made ereinabove we find no merit in this appeal. The appeal, accordingly, is dismissed. There is no order as to costs.
Source : I ADC (2004),79