Special Powers Act [XIV of 1974]
Section 2—
Sending manpower by practicing fraud and obtaining money
from the national of Bangladesh is not an act to be considered prejudicial as
defined in this section.
Hasina Begum vs Government of Bangladesh and others 47 DLR 572.
Sections 2(f) &
3—
Subsequent order of detention which is impugned in this application
was passed while the detenu was still in custody and as such, there was no
reason for the detaining authority to hold that the detenu was likely to
indulge in “prejudicial acts”
It appears to us that recourse to the subsequent order of
detention was adopted by the detaining authority as a crude device to avoid the
order whereby this court directed release of the detenu vide this court’s order
dated 29-11-93 passed in Criminal Misc, case No.1730 of 1993. The subsequent
order of detention was, therefore, a colourable exercise of power and not a
bonafide exercise of power with which the detaining authority is vested by
section 3 of the Special Powers Act, 1974, and was, therefore absolutely
malafide.
Nasima Akhter (Popi) vs Government of the People’s Republic of
Bangladesh, represented by the Secretary, Ministry of Home Affairs 49 DLR 57
Sections 2(f) &
3(l)(a)—
In order to avert prejudicial acts by the protesters the
Government passed the order of detention against the detenu. It might have been
a necessary and situational decision hurriedly taken by the newly installed
Government in the interest of maintaining law and order but it cannot be
justified as a legal order passed under the Act.
Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1
Sections 2(f) &
3(l)(a) —
The detenu in the present case committed no crime or
illegality in telling the BBC that he would start the election campaign for his
party soon and that he had no regrets or excuses.
Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1
Sections 2(f) &
3(l)(a)—
The detention order is bad not only because the two alleged
grounds are not relatable to the order of detention, but on the face of the
order it shows that it was not passed in terms of sub-section (1) of section 3
which manifests a total non-application of mind.
Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1
Sections 2(f) &
3(l)(a)—
The law does not authorize the Government to detain a person
for maintaining public safety and public order. Rather, the authority is given
to the Government if it is satisfied that it is necessary to prevent a person
from doing any prejudicial act.
The condition for exercise of power under section 3(1) is
therefore the necessity to prevent a person from doing any prejudicial act. The
impugned order does not say that the Government was satisfied that it was
necessary to detain Hussain Muhammad Ershad with a view to preventing him from
doing any prejudicial act. That having not been said, the condition for
exercise of authority under the sub-section was lacking and the satisfaction of
the Government in the circumstances was only a mechanical one meant only to
formalize the order of detention. The application of mind of the authority
which sustains such an order is thus plainly absent in the present case.
Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1
Sections 2(f) &
3(l)(a)—
The authority can never justify an order of preventive
detention by merely saying that the action was taken in the interest of public
safety and public order. It has to satisfy the High Court Division which is an
obligation cast upon the Court by the Constitution, that there were materials
on record as would satisfy a reasonable person to justify the order of
detention. It must be made clear that the law which we have declared has never
granted absolute power either to the Government or to the President to make an
order of detention even in the circumstances mentioned in the judgment nor it
is the law that the satisfaction upon which an order of detention is made is
immune from challenge. The power of the Supreme Court in making scrutiny of
executive acts never recedes to the background, as observed by the learned
Judge, so long as the Constitution remains operative. The maintenance of law
and order, public peace, public safety and security are undisputedly concerns of
the State and the Government know best how to preserve them, but the Court’s
concern in a case of preventive detention is to see whether the person is being
detained without lawful authority or in an unlawful manner.
Mostafizur Rahman vs Bangladesh, represented by the Secretary Ministry
of Home Affairs and another 51 DLR 1
Section 3—
Pendency of specific criminal cases and facts giving rise to
such cases cannot be used as grounds of detention under this section.
Jahanara Begum vs State 46 DLR 107.
Section 3—
An order of the District Magistrate for detention of a
person shall not remain in force for more than 30 days unless it is approved by
the Government.
An order of detention passed by the District
Magistrate/Additional District Magistrate for 30 days only does not require
approval of the government. Approval is necessary only if the period of
detention is more than 30 days. So the government is passing redundant orders
by approving the detention order passed by the District Magistrate or Addl.
District Magistrate for a period of 30 days.
Serajul Islam vs State 49 DLR 209
Section 3—
If it is manifest from the writ petition itself that the
cause or manner of detention stands adequately explained and justified on the
face of it, the respondents need not file an affidavit- in-opposition and may
support the detention orally relying on the petition itself.
Nasima Begum vs Bangladesh. 49 DLR (AD) 102.
Section 3—
Sub-section (3) of section 3 of the Act has not empowered
the government to extend the period of detention beyond 30 days as passed by
the District Magistrate or the Additional District Magistrate. It can only
approve such an order if the detention is for more than 30 days.
Serajul Islam vs State 49 DLR 209.
Section 3—
In the absence of any materials merely because petitioner
has been termed a dangerous terrorist he cannot be detained in custody as there
was no materials to justify the District Magistrate or the Government that his
detention is required under the provision of the Act.
Pranajit Barua vs State 50 DLR 399.
Section 3—
Sub-section (3) of section 3 has not empowered the
Government to pass any order of detention or to extend the period of detention
as passed by the District Magistrate or Additional District Magistrate. The
term “approval” includes power to extend the period of detention.
Serajul Islam vs State 49 DLR 209
Section 3—
The detention of the detenu appears to be in colourable
exercise of statutory power and then the detenu being a foreign national, in
order to prevent him from doing prejudicial act, the government, instead of
detaining him, could direct him to remove himself from Bangladesh.
Shahidul Alam vs Government of Bangladesh and others 95 DLR 15.
Section 3—
Preventive detention— There can be no question of the
detaining authority being under any obligation to act judicially or even
quasi-judicially in such matter.
Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52.
Sections 3 & 8—
Mere availability of sufficient materials in possession of
the Government will not make the order of detention ipso facto lawful if the
requirements of detention of a person as required under various provisions of
the Special Powers Act, 1974 are not strictly complied with.
Dr. Dhiman Chowdhury vs State 212. [Reversed by the decision 47 DLR
(AD) 52]
Section 3(1)—
Satisfaction for detention—A valid order under section 3(1)
must show that the Government was satisfied that it was necessary to prevent
the person from doing any prejudicial act as defined in section 2(f). It is no
part of the requirement of law that in the grounds also the satisfaction of the
Government with reference to prejudicial act or acts as in the detention order
has to be recited once again.
Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52.
Sections 3(1) &
8—
The purpose of detention appearing in the ‘grounds’ and in
the order of detention shows a lack of nexus between the two which means the
authority himself was not certain what prejudicial act was in fact likely to be
committed by the detenu.
Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47
DLR (AD) 52]
Sections 3(i) &
2(f)(ii)—
The government has sufficient legal authority to extradite
An up Chetia to India in response to the right of India to demand extradition
of Anup Chetia.
Saiful Islam Dilder vs Government of Bangladesh and others 50 DLR 318
Section 3(3)—
The extension of the detention of detenu 35 days before its
expiry is a mechanical work showing hollowness of mind of the detaining
authority.
It may be pointed out that no counter affidavit on behalf of
the opposite parties has been filed in this Court against the application under
section 491 CrPC and when asked the learned AAG could not produce any material
before us which actually necessitated the passing of the impugned order of
detention and its further extensions in the manner as stated above. In these
circumstances, we are of the view that the order of detention of the detenu and
subsequent extensions of his detention have been made not in accordance with
law.
Samirannesa vs Bangladesh and others DLR 276.
Section 3(3)—
The order of detention having neither been served upon the
detenu within 30 days of its making or approved by the Government within 30
days lost its force with the expiry of 30 days.
Iskander Lasker vs District Magistrate Jessore, and others
Section 8—
Since the grounds are too remote about 21 years back, the
same cannot be the grounds of preventing the detenu from doing any prejudicial
acts as contemplated by the Special Powers Act.
Rieta Rahman vs Bangladesh 50 DLR 201.
Section 8—
Detention shall be held illegal if the grounds of detention
are vague and indefinite. The satisfaction of the detaining authority must not
be wholly subjective; rather detention must have an objective basis amenable to
judicial review and scrutiny.
Rieta Rahman vs Bangladesh 50 DLR 201.
Section 8—
When sustainable grounds are mixed up with unsustainable
grounds and it cannot be ascertained which of the grounds actually actuated the
detaining authority to invoke the law of preventive detention, the entire order
of detention fails.
In the present case of there is nothing on record to show
that the detaining authority was actually satisfied on the basis of the
sustainable grounds alone to invoke section 3(2) of the Special Powers Act,
1974 for ordering the detention of the detenu. Since it cannot be predicted
which of the grounds led to the satisfaction of the detaining authority that it
was necessary to order the detention of the detenu with a view to prevent him
from doing “prejudicial act” we find that the entire order of
detention has been bad in law.
Jahanara Begum vs State 46 DLR 107.
Section 8—
The criminal cases relied upon as a background information
about the detenu’s prejudicial activities having ended in final report, the
background is wiped out from the grounds of detention.
Nasima Begum vs Bangladesh 49 DLR (AD) 102
Section 8—
Grounds for detention must be specific to enable the detenu
to make an effective representation before the Advisory Board.
Serajul Islam vs State 49 DLR 209
Section 8—
Considered with the background the allegations of character
will stick, but shorn of the background the allegations as to character are
incapable of any effective rebuttal in any representation against the order of
detention.
Nasima Begum vs Bangladesh 49 DLR (AD) 102
Section 8—
An order of detention becomes subject to impeachment in the
court of law if good grounds are mixed up with bad grounds in such a manner
that it becomes difficult to ascertain as to which ground actually led the
detaining authority to be satisfied as to the necessity of the detention order.
Serajul Islam vs State 49 DLR 209
Section 8—
Since the grounds are too remote about 21 years back, the
same cannot be the grounds of preventing the detenu from doing any prejudicial
acts as contemplated by the Special Powers Act.
Rieta Rahman vs Bangladesh 50 DLR 201
Section 8—
Detention shall be held illegal if the grounds of detention
are vague and indefinite. The satisfaction of the detaining authority must not
be wholly subjective; rather detention must have an objective basis amenable to
judicial review and scrutiny.
Rieta Rahman vs Bangladesh 50 DLR 201
Section 8—
The relevant portion of the incriminating report or the
facts disclosed therein having not been brought to the knowledge of the detenu,
the grounds of his detention based on the report suffer from illegality.
Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47
DLR (AD) 52]
Section 8—
Of several grounds of detention, if some are good and some
bad, the detention order as a whole fails, because it cannot be ascertained
which grounds led to the satisfaction of the detaining authority that the
detenu was likely to commit “prejudicial act.”
Dr Dhiman Chowdhury vs State 47 DLR 212. [Reversed by the decision 47
DLR (AD) 52]
Section 8—
Despite pendency of the criminal case, where allegations
against detenu are of serious nature and his background satisfies the authority
that he need be detained for preventing prejudicial acts, an order of his
detention can be made.
Nasima Begum vs Government of the People’s Republic of Bangladesh,
represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat,
Dhaka and others 47 DLR 407.
Section 8—
Ground of detention— Plea of vagueness—Although further
particulars of grounds could be given, the grounds that the detenu was a leader
of a group of terrorists and a toll collector within DND embankment, he
tortured people refusing to pay tolls and forcibly dispossessed the inhabitants
from their purchased lands, are at least adequate in order to enable a
reasonable person to file effective representation against the grounds.
Rokeya Begum vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs and others 47 DLR 411.
Section 8—
Grounds of detention are not absolutely vague—It is
contended that the grounds of detention are absolutely vague, indefinite and
unspecified and as against that no effective representation can be made. Held,
that the grounds are not absolutely vague so as to deprive the detenu of his
right to submit effective representation against the allegation constituting
the grounds and it cannot be assailed on the ground of the infirmity of the
grounds.
Rokeya Begum vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs and others 47 DLR 411.
Section 8—
Pendency of criminal cases—Its use in the grounds of
detention—Although pendency of criminal cases has been mentioned in the grounds
of detention the same has not been used as the grounds of detention but the
grounds are his prejudicial activities—So there is no illegality in the order
of detention.
Rokeya Begum vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs and others 47 DLR 411.
Section 8—
To make a dissection of the “grounds” which was a
composite piece and then to analyse them in isolation finding fault with each
dissected part was a fundamental mistake.
Bangladesh vs Dr Dhiman Chowdhury and others 47 DLR (AD) 52.
Section 8—
In the absence of any return by the respondents, the
contention that the grounds of detention were served on the detenu beyond
statutory period and that he was deprived of the right to make an effective
representation before the authority remain unchallenged. In this view, the
detenu is being detained without lawful authority.
Shameen vs Government of Bangladesh and others 47 DLR (AD) 109.
Section 8—
The criminal cases relied upon as a background information
about the detenu’s prejudicial activities having ended in final report, the
background is wiped out from the grounds of detention.
Nasima Begum vs Government of the People’s Republic of Bangladesh,
represented by the Secretary, Ministry of Home Affairs and others 49 DLR (AD)
102.
Section 8—
Considered with the background the allegations of character
will stick, but shorn of the background the allegations as to character are
incapable of any effective rebuttal in any representation against the order of
detention.
Nasima Begum vs Government of the People’s Republic of Bangladesh,
represented by the Secretary, Ministry of Home Affairs and others 49 DLR (AD)
102.
Section 8—
Since the grounds are too remote about 21 years back, the
same cannot be the grounds of preventing the detenu from doing any prejudicial
acts as contemplated by the Special Powers Act.
Rieta Rahman vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs, and others 50 DLR 201
Section 8—
Detention shall be held illegal if the grounds of detention
are vague and indefinite. The satisfaction of the detaining authority must not
be wholly subjective; rather detention must have an objective basis amenable to
judicial review and scrutiny.
Rieta Rahman vs Bangladesh, represented by the Secretary, Ministry of
Home Affairs, and others 50 DLR 201
Section 8(2)—
Grounds of detention were not served on the detenu within 15
days from the date of his detention.
Consequently, the detention of the detenu became illegal
with the expiry of 15 days from the date of his detention and as such further
detention of the detenu has become illegal with effect from 17-5-95. The order
of the Government extending the period of detention could not render the
illegal detention legal.
Muklesur Rahman (Md) vs Government of Bangladesh represented by the
Secretary, Ministry of Home Affairs, and others 49 DLR 63
Section 8(2)—
Communication of grounds of detention within 15 days— There
is no specific provision in the Special Powers Act for calculation of the
period—In view of section 9 of the General Clauses Act the date of detention is
to be excluded while computing the period of 15 days.
Samirannesa vs Bangladesh and others 46 DLR 276.
Section 25B—
Quantum of the incriminating material (heroin) is not a
determining factor for awarding sentence under the Special Powers Act.
State vs Raja Abdul Majid and others 48 DLR 336.
Section 25B(l)(b)—
Cattle or bullocks being movable properties capable of being
sold and purchased fall within the definition
of the term “goods”.
Kabil Miah and others vs State 46 DLR 463.
Section 25B(2)—
In view of the fact that the accused could not prove any
evidence to show that the sarees were Bangladeshi sarees or in view of the fact
that accused could not show any papers for possessing those sarees it can be
said that he committed the offence under subsection (2) of section 25B of the
Special Powers Act, 1974.
Shamsul Haque and another vs State 49 DLR 528
Section 25C(d)—
The Drug Control Ordinance is an additional forum for trying
drug offences. Taking of cognizance and framing of charge by the Tribunal under
the Special Powers Act in respect of offences relating to possession of
spurious medicine, are not illegal and the proceedings thereof are not liable
to be quashed.
Ordinance No. VIII of 1982 has been promulgated not with a
view to excluding all other trials on the same offence but as an additional
forum for trying drug offences. If the same offence can be tried by a Special
Tribunal under the Special Powers Act it cannot be said that the
accused-petitioner has an exclusive right to be tried by a Drug Court only. As
on the petitioner’s own showing he has been charged only under section 25C(d)
of the Special Powers Act by the Senior Special Tribunal, we do not find any
illegality in the proceedings.
Ashraf Ali @ Asraf Ali vs State 49 DLR (AD) 107.
Section 26—
By inclusion of the offence of the above ordinance in the
schedule to the Special Powers Act the jurisdiction of the Sessions Court has
been ousted. Now, as the death is proved but not for demand of dowry, the
present case is sent back to the Sessions Court for trial.
Firoz Miah vs State.
Section 26—
When the offences alleged are offences punishable under the
Cruelty to Women (Deterrent Punishment) Ordinance the trial of the present case
by the Sessions Judge under sections 302/201 Penal Code was not proper and
legal. The case should have been tried by a Special Tribunal constituted under section
26 of the Special Powers Act.
Ekramul Huq @ Bachchu and another vs State 219.
Section 27—
Without any investigation or inquiring in the case by the
police or any report of any such enquiry or investigation by the police, taking
of cognizance by the Tribunal is illegal.
Mossaraf vs State 49 DLR 487
Section 27—
The Tribunal is competent to take cognizance of the offence
disclosed in the police report and other papers in exercise of its power under
section 27 of the Act irrespective of the law mentioned in the chargesheet.
Makhon Lai Sarker vs Nihar Mondol alias Pagol and 8 others 51 DLR 464
Section 27(1)—
In spite of discharge of the accused by the Magistrate on
the basis of recommendation by the police Special Tribunal has the discretion
of taking cognizance against such a discharged accused.
Above discretion has been given to the Special Tribunal
inspite of the power of the Magistrate to discharge an accused on the basis of
the police report to prevent abuse of power by the police in recommending
discharge of the accused in the presence of clear allegations and materials.
Narayan Chandra Das vs State and others 48 DLR 302.
Sections 27(6A) &
30—
An absent person should not be too readily assumed to be an
absconder without fixing a date for his appearance and without directing his
sureties to produce him.
Nesar Ahmed vs Bangladesh 49 DLR
111.
Sections 27(6) &
30—
There being no order that the Tribunal had reason to believe
that the petitioner had absconded or was concealing himself and there was no
immediate prospect of arresting him, he has made out a case that he had no
opportunity of availing the alternative remedy provided under section 30 of the
Act.
Mobarak Ali alias Mobarak Ali Mondal vs People’s Republic of Bangladesh
and others 50 DLR 10.
Section 29—
It is true that no charge was framed against the accused
under section 25B(2) but in view of the provisions of section 29 of the Special
Powers Act and sub-section (2) of section 238 of the Code of Criminal
Procedure, he may be convicted under sub-section (2) of section 25B of the
Special Powers Act, 1974.
Shamsul Haque and another vs State 49 DLR 528.
Section 29—
A Tribunal constituted under section 26 of the Special
Powers Act is also required to follow the provisions of section 476 of the Code
of Criminal Procedure if it likes to proceed against any witness of a case for
commission of offence under section 193 of the Penal Code.
Idris Miah (Md) vs State 50 DLR 629.
Section 30—
Inherent jurisdiction of court—Whether such jurisdiction is
applicable in cases from which appeals are barred by limitation—Section 561A
CrPC cannot be conceived to give the High Court Division jurisdiction to
retrieve the cases from the moratorium after they have been barred by
limitation. Then, in the memo of the appeal taken or in the submission no
ground has been taken that the Tribunal had no jurisdiction to try the case or
that it arrived at absurd or preposterous conclusion from the evidence on
record.
The section 561A of the Code of Criminal Procedure has not
given any new jurisdiction to the High Court to override other laws. It is easy
to see that this Court cannot have any inherent jurisdiction to strike down the
law of limitation. The law of limitation is so inexorable that a person loses
his good title on account of law of limitation. It may be desirable that
something is done for the redress of the accused who lost their right of appeal
and has very good case in their defence, but it is for the legislature to do.
Mir Mohammad Ali vs State 46 DLR 175.
Section 30—
An appeal filed under section 30 of the Special Powers Act
but not admitted for hearing as it was found barred by limitation can be
allowed to be converted to a Miscellaneous case under section 561A of the CrPC
for securing the ends of justice.
Sohail Ahmed Chowdhury vs State 47 DLR 348.
Section 30—
After conversion of an appeal to an application under
section 561A CrPC the application can be disposed of by the same Bench without
issuing a Rule afresh—technicalities of procedure may be avoided with a view to
securing the ends of justice.
Sohail Ahmed Chowdhury vs State 47 DLR 248.
Section 30—
In the state of evidence on record the materials recovered
from the appellant do not attract the mischief of the Arms Act and the alleged
offence could not have been taken cognizance of. As such the whole trial and
the order of conviction and sentence were without jurisdiction.
Nesar Ahmed vs Bangladesh 49 DLR (AD)lll.
Section 30—
The conclusion of the trial of the case has become
uncertain, the accused is in detention for a long period of time. In view of
such a situation the appellant-accused is granted bail.
Aslam vs State 50 DLR 161.
Section 30—
An offence under section 342 of the Penal Code which is not
included in the schedule of the Special Powers Act cannot be the basis of
conviction as the same is a non-schedule offence.
Had the original offence charged been one under Penal Code
then the learned Judges by application of section 238 of the Penal Code could
come to a finding that the offence constitutes a minor offence and in that view
could have convicted the appellant under a minor offence, but here the original
offence charged was exclusively triable by the Special Tribunal and in that
view the alteration of the conviction from a schedule offence to an offence
which is only referable under Penal Code is not legally permissible.
Abdur Rahman and others vs State 51 DLR (AD) 33.
Section 32—
Delay in concluding trial is a good ground for allowing bail
to the accused.
Shahid Mia and Others vs State 51 DLR 207.
Words and Phrases
Abettor—
An abettor in principle ought not to be awarded a higher
punishment than that meted out to the principal offender.
Major (Retd) Ashrafuddin Sekander vs State 50 DLR (AD) 108
Acquittal of
non-appealing accused—
After the Court finds that the order of conviction as a
whole is not maintainable in law even the non-appealing accused should be given
the benefit of the order of acquittal. This is necessary to ensure that the
fountain of justice is not stopped to the deprivation of any aggrieved person so
that everybody may share justice equally.
State vs Mesbahuddin 49 DLR 245.
Accomplice Witness—
The court was not justified to tender pardon to the
accomplice witness and examine him as a PW without assigning any reason
specially when the prosecution did not pray for tendering pardon to him.
Zakir Hossain vs State 46 DLR 287.
Advocates practicing before any Court should be careful to
conduct themselves in such a manner so as not to lower the Court in the
estimation of others which ultimately lower themselves in the estimation of
others.
State vs Shahidul Alam Chowdhury and two others 51 DLR 380
Criminal Trial—
Every Court should keep in view the well-settled principle
that justice should not only be done but should manifestly and undoubtedly be
seen to be done” as has been further stressed by their Lordships of the
Appellate Division in the case of Khondker Mostaque Ahmed vs Bangladesh
reported in 34 DLR (AD) 222. Otherwise, the common proverb that “justice
hurried, is justice buried” may be proved true.
Mostafizur Rahman (Md) vs State
Criminal Justice—
It is high time that the system of investigation of criminal
case by the police alone should either be abandoned or completely reformed.
Otherwise there is no chance of retrieving the system of criminal justice from
the malaise.
With the tremendous increase in the number of crimes,
specially organized crimes, time has come to give a second thought about the
above principle that ten offenders may be acquitted but a single innocent
person not be punished.
Ali Akbar (Md) vs State and ors 51 DLR 268
Corroboration—
In the context of realities the concept of ‘independent
corroboration’ must be given a liberal construction and restricted meaning and
it should not be rigidly sought for when some evidence worthy of credence is on
record.
Nurul Alam Chowdhury and another vs State 51 DLR 125
Defence Case—
The defence case of same side shot in a murder case is not
appreciated when there is no evidence that any person belonging to the
informant party was carrying any gun or that there was second gun at the place
of occurrence.
State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR 154.
Departmental Proceeding—
The other respondent engineers are found not amenable to any
criminal charge under the law but their conduct as responsible officers leaves
much to be desired! The University Authority may yet consider the advisability
of a departmental proceeding to find out if there was any negligence of duty on
the part of any of the engineers in the matter of receiving/checking the
disputed pumps and issuing certificate for payment.
State vs Md Iqbal Hossain and others 48 DLR (AD) 100.
Law & Procedure—
Principle of Law and Procedure, importance of; often the
case is decided only upon a dogma unsettling the established law and procedure.
This, we must say, is highly undesirable and has a corroding effect on the
administration of justice itself.
State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR AD 154.
Martial Law—
While leaving, the Martial Law does not leave a trail and it
is good as long as it lasts, but with its departure it no longer casts a shadow
upon the ordinary laws of the land.
The learned Divisional Special Judge has committed gross
illegality in disposing of the case on the evidence recorded by the Summary
Martial Law Court and this disposal is no disposal in the eye of law. The order
of conviction and sentence passed by the Divisional Special Judge is set aside
and the case is sent back of the Special Judge, for fresh trial of the
appellant after examination of the prosecution witnesses afresh.
Saidur Rahman vs State 49 DLR 206
Professional Etiquette—
In the greater interest of justice always a safe distance is
to be maintained between the judges and members of the legal profession
retaining good relations and respect for each other.
If any member of the legal profession hobnobs with any Judge
and such a member appears in any case before that Judge, the party adverse to
his client gets apprehensive about getting fair justice from that Judge. Even
if the client of that member of the profession wins the case by the merit of
the same his adversary cannot dissuade himself from his doubt about the
fairness in the matter and thus his faith in the administration of justice is
shaken.
State vs MA Wahab, Advocate 51 DLR 257.
Sentence—
The sentence of the appellant is reduced upon submission of
his lawyer, who appeared for him all-through, that the appellant is 90 years
old as recorded in his statement under section 342 CrPC, although in the record
of the appeal his age has not been mentioned.
Hasan Ali and others vs State 47 DLR (AD) 69.
Remand—
The appeal is sent on remand as the judgment in question
laid down some unacceptable principles and there has not been a proper disposal
of the appeal.
The appeal was disposed of practically in a summary manner
without properly considering the entire evidence on record, particularly the
evidence of eye-witnesses and upon making a wrong approach based on untenable
premises. We are not satisfied with the manner of disposal.
State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.
TI Parade—
When TI parade is held after an inordinate delay from the
time of commission of the crime, the chance of mistake increases and this is a
major reason for not depending on such TI parade.
Mizanur Rahman (Md) vs State 49 DLR 83.