Case No: Writ Petition No. 3012 of 2001
Judge: Zubayer Rahman Chowdhury,
Court: High Court Division,,
Citation: 1 LNJ (2012) 332
Case Year: 2012
Appellant: Brigadier (Retd.) A.H.M Abdullah
Respondent: Government of Bangladesh and others
Delivery Date: 2010-06-01
(Special Original Jurisdiction)
|Shah Abu Nayeem Mominur Rahman, J.
Zubayer Rahman Chowdhury, J.
Brigadier (Retd.) A.H.M Abdullah
Government of Bangladesh and others
Article 102 (1)(2)(a)(ii)
Motor Vehicles Ordinance (LV of 1983)
Sections 105,140,152 and 156
Police Regulation Bengal, 1943
Regulations 33 and 260
Police Act (V of 1861)
Dhaka Metropolitan Police Ordinance, 1976
Sections 16 (e) and 161
Police Officer (Special Provision) Ordinance (LXXXIV of 1976)
Sections 2(b),4,5,12 & 48
The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army, has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance , 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.
The police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excess occur regularly, such incidents are rarely challenged in a Court of law.
The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term ‘misconduct’, it is also violative of the other provisions quoted above. As such, the allegation of misconduct against respondent No. 10 has been established. The issuance of the impugned Charge Report dated 30.05.2001 is found to be without lawful authority and of no legal effect. Respondent No. 5 (Inspector General of Police, Bangladesh) and respondent No. 6 (Commissioner, Dhaka Metropolitan Police) are directed to initiate appropriate disciplinary action against respondent No. 10 in accordance with law. ...(3,9,46,52 & 53)
Ghani .v. Jones 1QB, 693; R .v. Guardians of Lewisham Union, (1897) 1 QB 498; I.R.C. .v. Fed of Self-employed,  2 All E.R. 93; S.P. Gupta v. President of India, reported in AIR 1982 SC 149; Warburton .v. Loveland (1832) 2 D and Cl. 480; N.D.-State .v. Northwester Pac. Rail Co., 172 N.W. 324, 331; Willingale .v. Norris (1909) 1 K.B. 57; C. Kalbagh .v. State of UP, AIR 1989 SC 1452; Merkur Island Shipping Corporation .v. Laughton and Others  2 AC 570 ref.
Writ Petition No. 3012 of 2001
1. This Rule Nisi, at the instance of the petitioner, was issued calling upon the respondents to show cause why the Charge Report bearing serial number 0684546 dated 30.5.2001 purport-edly issued under the Motor Vehicle Ordinance, 1983 by respondent no. 10 in respect of a Government vehicle bearing Registration No. Dhaka Metro Gha-11-2744 shall not be declared to be harassing in nature and without lawful authority and of no legal effect.
2. Facts necessary for disposal of the Rule, are, as under:
The petitioner, a retired officer in the rank of Brigadier of the Bangladesh Army, was, at the relevant time, serving as an Engineering Advisor to a World Bank Project called Road Rehabilitation and Maintenance Project-III under the Roads and Highways Department, Government of Bangladesh.
3. While serving as such, on 30.05.2001, the petitioner and his wife went to Zia International Airport to receive his son in his above mentioned official car, driven by the official driver Md. Joynal. On reaching the Airport, the petitioner went inside while his wife, being unwell, waited in the car. When the petitioner saw his son coming out of the Airport, he signalled the driver to come to the pick up point. At that moment, on being informed that the police personnel were creating some sort of commotion in front of his car, the petitioner went there and found one police officer shouting at the top of his voice, showing little care or respect for the lady who was sitting inside the car. Although the petitioner’s wife explained to the police officer (respondent No. 10) that as she was very ill, she was unable to get down from the car and she was waiting to pick-up her son who was on his way out, he paid no heed to her and created an unpleasant scene in public. The petitioner disclosed his identity and requested respondent no. 10 to show his identity, as he did not have any name tag on his uniform, as is usually done by all on-duty police personnel. Respondent no. 10 took a out name tag from inside his pocket bearing the name Ferdous. On being asked by the petitioner as to why he was behaving in such a rude manner, respondent No. 10, without caring to reply, asked for the documents of the car. The documents, including original fitness certificate, insurance certificate and a copy of the registration certificate were produced and he was told that the vehicle was a Government transport. Respondent no. 10 took the insurance certificate and the fitness certificate and left the place. Shortly thereafter, when the petitioner was about to leave the Airport along with his wife and son, another policeman came up to the car and handed over a piece of paper to him which turned out to be Charge Report under Section 105 of the Motor Vehicles Ordinance, 1983 issued by said respondent No. 10 alleging contravention of sections 140, 152, 156 with a special note that he has framed charge under the instruction of the OC, Cantonment Police Station and the Chief Security Officer of the Airport and also recommending realisation of full fine.
4. The petitioner sent a Demand of Justice notice to the respondents through his lawyer on 13.06.01, but the same remained unresponded.
5. It is in this back-drop that the petitioner moved this Court and obtained the Rule in the aforesaid terms.
6. Although it appears from the office note dated 15.07.02 of the case record that service of notice has been duly communicated, yet none of the respond-ents appeared to contest the Rule. On our query, the learned A.A.G. submits that she has no instructions in this matter.
7. Mr. M. A. Aziz Khan learned Advocate, appearing for the petitioner, has taken us through the writ petition and its annexures as well as the relevant provisions of law.
8. Mr. Khan submitted that the actions of the respondents, who are all public servants, are contrary to the provisions of Article 21(2) of the Constitution of Bangladesh which stipulates that every person in the service of Republic has a duty to strive at all times to serve the people.
9. He submits that respondent no. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent no. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.
10. Mr. Khan refers to Regulation 260 of the Police Regulations Bengal, 1943 (hereinafter referred to as the Regulation) which is as follows :
“260: Investigation officers should carefully abstain from causing unnece-ssary harassment either to the parties or to the people generally. Only those persons who are likely to assist the inquiry materially should be summoned to attend. Where possible the investigating officer should himself go to the house of the witness to be examined. The proceedings should be as informal as possible. The questioning of witnesses should ordinarily be conducted apart, and in a manner that will not be distasteful to them”.
11. He also refers to Section 23 of The Police Act, 1861 (hereinafter referred to as the Act) which is as follows :
“23: It shall be the duty of every police-officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists: and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking-shop, gaming-house or other place of resort of loose and disorderly characters”.
12. Mr. Khan then refers to Section 16(e) of the Dhaka Metropolitan Police Ordinance, 1976 (hereinafter referred to as ‘the Ordinance’) which runs as under:
“16(e) in dealing with women and children, to act with strict regard to decency and with reasonable gentleness”. (emphasis supplied)”
13. Relying on the aforesaid provisions of law, Mr. Khan submits that although there is a clear stipulation to the effect that the police personnel are not to cause unnecessary harassment to the public in general and to women and children in particular, there has been a gross violation of the same in the instant case. He makes a pointed reference to clause 16(e) of the Ordinance quoted above, which requires the police to act with strict regard to decency and gentleness while dealing with women and children. He further submits that although the police is required by law to prevent the commission of public nuisance, in the instant case, it was respondent no. 10 who was solely responsible for creating public nuisance by his rude and arrogant behaviour.
14. Mr. Khan next draws our attention to Annexure ‘Q’ to the writ petition and submits that although the name of the accused person in the Charge Report has been mentioned as Driver Md. Zafar, the petitioner’s driver’s name was Md. Joynal Khan, which is evident from his driving licence, as evidenced by Annexure ‘G’ to the writ petition. It is further submitted that although there is a note that the Charge Report has been issued under the instruction of OC, Cantonment Thana and the Chief Security Officer of the Airport, there was no official endorsement. He submits that respondent no. 10 himself made the endorsement illegally to save his own self.
15. Mr. Khan then submits that the action of respondent no. 10 in impounding valid documents of the car (i.e. the Fitness Certificate and the Insurance Certificate) was in gross violation of Section 161 of the Ordinance, which authorizes such an action only when there is reason to believe that such documents are false documents within the meaning of Section 464 of the Penal Code. In the instant case, respondent no. 10 had absolutely no basis to form such opinion since the vehicle in question was a Government vehicle. As such, the aforesaid actions of respondent no. 10 was not only in excess of his jurisdiction, but malafide too.
16. Mr. Khan informs the Court that the petitioner, being a law abiding citizen, has duly paid the fine imposed by the impugned Charge Report dated 30.05.2001.
17. Last, but not least, Mr. Khan urges that this Court to take note of the situation that prevails in our society today. He argued, very strongly, that there are many incidents like this occurring everyday relating to police excess and non-compliance of Police Rules and Regulations by the police themselves, but such occurrences remain unreported mostly out of fear of further harassment by the police. More importantly, ordinary citizens neither have the resources nor the ability to stand-up against police excess and bring such incidents to the Court’s notice for redress. Hence, the instant case should not be dealt with leniently, but be an example against police excess considering the issues in a wider perspective relating to the non-compliance of the provisions of the Act, Regulations and the Ordinance by the police.
18. Although the matter before us raises issues of considerable public importance, Mr. Khan has not referred to any decision in support of his case. Nevertheless, we made an endeavour to refer to some decisions from our own jurisdiction, but there was hardly any reported decision on the subject. We noted, much to our surprise and dismay, that a similar scenario prevails in the English jurisdiction. To quote Prof. H.W.R. Wade:
“It is impossible to examine the cases on the status of the police without marvelling at how few they are, and in how many respects their position and powers are still not clearly defined. The police have had remarkable success in avoiding challenge in the courts of law, even though they often stretch their powers and risk actions for trespass.” (Administrative Law, Fifth Edition, page 135)”
19. In Ghani .v. Jones, reported in  1QB, 693 where the action of the police in impounding the passports and conducting unauthorized searches was challenged by the petitioner, a similar view was expressed by no less an authority than Lord Denning MR himself, when he observed :
“The case raises matter of importance on which there is very little direct authority in our books.”
20. It is in this backdrop that we are called upon to decide this matter. We intend to do so, first by considering the relevant Rules and Regulations and the extent of their application and thereafter certain aspects relating to the concept of rule of law.
21. At the outset, it would be appropriate to begin by examining the maintainability of an application of this nature.
22. The pre-requisite of having a specific legal right before issuance of a writ of mandamous was laid down towards the end of the nineteenth century in R .v. Guardians of Lewisham Union, reported in (1897) 1 QB 498. However, since then, there has been a very significant shift, and, so much so, that by the end of the twentieth century, the Courts were inclined to issue mandamous even in cases where the applicant had no specific legal right.
23. In I.R.C. .v. Fed of Self-employed,  2 All E.R. 93, Lord Scarman observed: “The decision of the Divisional Court in R .v. Guardian of Lewisham Union was accepted as establishing that an applicant must establish ‘a legal specific right to ask for the interference of the Court by order of mandamous. I agree with Lord Denning MR in thinking this was a deplorable decision”.
24. In our own jurisdiction, the position has been summarized as under :
“In England, the Lewisham Union Principle was given up as it would have the effect of allowing the public functionaries a free hand in ignoring their public duties. In countries like ours, it will have a far more serious effect as many instances of non-performance of legal duty by government and public functionaries will remain without remedy, thereby eroding the concept of rule of law and constitutionalism. This principle originated in England and when it has been discarded there, there is no rationale for insisting on the application of this principle in our country. Thus, if a person is going to be affected by the failure of a public functionary to do what he is required by law to do, he can claim performance of the legal duty of the public functionary whether or not he has a specific legal right to claim performance of the duty” (M. Islam, Constitutional Law of Bangladesh, Second Edition, page 529).”
25. A definite jurisprudential basis was laid down in S.P. Gupta v. President of India, reported in AIR 1982 SC 149 where Bhagwati, J, in according standing to the petitioners, observed :
“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determine class of persons is by reason of poverty, helpless-ness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application seeking judicial redress for the legal wrong or injury caused to such person or determi-nate class of persons.”
26. As noted above, the various provisions in the Police Rules and Regulations are quiet clear in specifying guidelines for the police in their dealings with the public in general and women and children in particular. In this context, we may refer to Regulation 33 of the Regulations which deals with behaveiour of the police towards the public. It states :
“33 (a) No police force can work successfully unless it wins the respect and good-will of the public and secures its co-operation. All ranks, therefore, while being firm in the execution of their duty, must show forbearance, civility and courtesy towards all classes. Officers of superior rank must not only observe this instruction themselves but on all occasions impress their subordinates with the necessity of causing as little friction as possible in the performance of their duties. (b) Rudeness, harshness and brutality are forbidden; and every officer of superior rank must take immediate steps for the punishment of any offenders who come to his notice.”
27. Similarly, Section 15(c) of the Ordinance provides :
“General duties of police officers. – It shall be the duty of every police officer –
- to the best of his ability to prevent commission of public nuisances ;
28. Under the 1861 Act, a duty was cast upon the police by Section 23 to “prevent commission of offences and public nuisance.” Almost a century later, in 1943, the Regulations imposed further control on the police by requiring them to “abstain from causing unnecessary harassment either to parties or to the people generally.” Regulation 33(a) required all ranks to “show forbearance, civility and courtesy towards all classes”. As an additional measure, rudeness, harshness and brutality were forbidden by Regulation 33(b). More recently, in 1976, under the Ordinance, the police was required “to act with strict regard to decency and reasonable gentleness” in dealing with women and children.
29. On a careful analysis, it appears that the conduct of the police vis-a-vis the general public is regulated by certain positive enactments and negative stipulations. The words ‘decency’, ‘gentleness’, ‘courtesy’, forbearance’, ‘civility’, ‘rudeness’, ‘brutality’ etc. have been incorporated in various sections of the Act, Ordinance and Regulations with a definite purpose or intent. The Legislatures, being mindful of the unfettered power the police are considered to exercise, were quite clear in their intent to prevent any abuse or misuse of such powers. To quote Tindal, CJ in Warburton .v. Loveland (1832) 2 D and Cl. 480
“……………. the words of the statute speak the intention of the Legislature.”
In the words of the distinguished Jurist Sir John Salmond:
“The Courts must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. Ita scriptum est is the first principle of interpretation”. (Salmond, Jurisprudence, Twelfth Edition, page 132)
Furthermore, as an additional measure, rudeness, harshness and brutality was not only forbidden, but every officer of superior rank was required to take immediate steps for punishment of any offender when it comes to his notice.
31. Walber, in his Oxford Companion to Law (1980 Edition, page 1093) explained the term rule of law as under:
“The concept implies that the ruler must also be subject to law. It is the subordination of all authorities, legislative, executive and others to certain principles, which would generally be accepted as characteristic of law, such as the ideas of fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual”.
32. As observed by Hilaire Barnett in Constitutional and Administrative Law (Third Edition, page 85):
“The rule of law insists that every person-irrespective of rank and status in society – be subject to the law. For the citizen, the rule of law is both prescriptive-dictating the conduct required by law – and protective of citizens – demanding that government acts according to law”.
33. In S.P. Gupta’s case, cited above, the Supreme Court of India held:
“If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective”.
34. The concept of rule of law has been upheld not only by the Courts, it has also been endorsed and adopted by the Universal Declaration of Human Rights more than half a century ago and subsequently, in 1950, by The European Convention for the Protection of Human Rights and Fundamental Freedoms. The International Commission of Jurists, in the Delhi Declaration of 1959, stated:
“The function of the legislature in a free society under the rule of law is to create and maintain the conditions which will uphold the dignity of man as an individual.”
35. Having considered the theoretical aspects and the relevant provisions of the Act and the Rules, we now propose to consider one of the core issue in this matter, i.e., ‘the misconduct of the police’.
The term ‘misconduct has been defined in 2(b) of ‘The Police Officers (Special Provisions) Ordinance, 1976’. It states :
“(b) ‘misconduct’ means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1966, or unbecoming an officer or gentleman.”
36. Under the aforesaid Ordinance, if a police officer is found guilty of misconduct or inefficiency (Section 4(i) and 4(vii) respectively), then any one of the penalties mentioned in Section 5(a) to 5(e) may be imposed upon him. Section 5 provides as under:
“Penalties.- The following shall be the penalties which may be imposed under this Ordinance, namely :-
- dismissal from service;
- removal from service;
- discharge from service;
- compulsory retirement; and
- reduction to lower rank.”
“48. Penalty for misconduct of police-officer.- Any police officer who is guilty of cowardice or of any wilful breach of any provision of law or of any rule, regulation or order which it is his duty as such police-officer to observe or obey shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand taka, or with both.”
38. Evidently, the provisions for dealing with an errant police officer are elaborate and stringent. This, in our view, is necessary for maintaining discipline in the force. It is equally important that Courts should enforce their application when called upon to do so, or else the provisions would become meaningless.
39. Maxwell on The Interpretation of Statutes has clearly stated that if the language is clear and explicit, the Court must give effect to it (12th edition, page 1).
40. We may also profitably refer to a passage from Broom’s Legal Maxims (10th Edition, page 384) where it has been stated:
“If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves alone do, in such case best declare the intention of the law giver”.
41. Judge Colley, in his Constitutional Limitations, wrote that the police of a state, in a comprehensive sense, embraces, among others, its whole system of internal regulation, by which the state seeks to preserve the public order and to prevent offenses against the state. (Corpus Juris Secondum, Vol. LXXII, page 207).
42. The term ‘Police Regulation’ is used to define a power which resides in the state. In its primary or narrow sense, it refers to the exercise of the police power to protect the health, lives and morals of the people. In its broader acceptation, it embraces everything to promote the general welfare; everything essential to the great public needs. (N.D.-State .v. Northwester Pac. Rail Co., 172 N.W. 324, 331).
43. As to the question of binding force of such rules and regulations, it has been established by judicial pronouncements that rules made under a statute have the force of law.
44. In Willingale .v. Norris (1909) 1 K.B. 57, the question of binding force of Regulations made under a Statute came up for consideration. It was held that where a Statute makes provisions for Rules to be made thereunder, such Rules have the force of law (per Lord Alverstone, CJ).
45. Since the enactment of the Act in 1861, the Regulation in 1943 and the Ordinance in 1976, there has been significant change in the set-up and format of the police force. There is no longer one police force for the entire country. Rather, each Metropolitan city has a force of its own like the Dhaka Metropolitan Police, Chittagong Metropolitan Police, Khulna Metropolitan Police. Today’s police force is a far-cry from the police force of yester years. They are evidently much better equipped and, presumably, better trained. They have sophisticated arms, communications network and fast cars at their disposal and, very recently, a new uniform to go with their image. However, all the expenses are borne by the people of the country. It is, therefore, not only necessary, but also imperative that the police comply strictly with the provisions of the Act, Rules and Regulations which govern their dealing with the public. In C. Kalbagh .v. State of UP, reported in AIR 1989 SC 1452, it was aptly held : “there is the imperative requirement of ensuring that the guardians of law and order in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens” (Per Pathak, CJ).
46. The police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excess occur regularly, such incidents are rarely challenged in a Court of law.
47. We are inclined to accept Mr. Khan’s submission that most people are either reluctant to initiate any actions against the police or are very skeptical about any disciplinary action that may be taken against such errant officers. The petitioner deserves to be commended for bringing an issue of such public importance and relevance before this Court. This, no doubt, will serve to create awareness amongst the general public who, though being law abiding, paradoxically remain unaware or ignorant about the law itself. We are reminded of what Lord Donaldson, MR stated in Merkur Island Shipping Corporation .v. Laughton and Others  2 AC 570:
48. We have considered the submission of the learned Advocate and have also given our anxious thoughts to the grounds taken in the petition. We also take note of the fact that no affidavit-in-opposition has been filed on behalf of any of the respondent nor has any one even entered appearance, although notice has duly been served on them. This is also indicative of their callous and arrogant attitude, to say the least.
49. The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent no. 10 not only falls within the ambit of the term ‘misconduct’, it is also violative of the other provisions quoted above. As such, we have no hesitation in holding that the allegation of misconduct against respondent No. 10 has been established.
50. Regrettably, inspite of the matter having been brought to the notice of the superior officers, as is evidenced by Annexure ‘R’ to the writ petition, no action appears to have been taken against the deliquent officer. This, in turn, makes the superior officers liable for punishment as per the aforesaid provisions.
51. In view of the discussions made above, we find substance in the Rule.
52. Accordingly, the Rule is made absolute. The issuance of the impugned Charge Report dated 30.05.2001 is found to be without lawful authority and of no legal effect.
53. Respondent No. 5 (Inspector General of Police, Bangladesh) and respondent No. 6 (Commissioner, Dhaka Metropolitan Police) are directed to initiate appropriate disciplinary action against respondent No. 10 in accordance with law.
54. Respondent nos. 5 and 6 are further directed to ensure that all police personnel, in whatever rank they are now serving, be made to be acquainted properly with the provisions of the 1861 Act, the 1943 Regulations and the 1976 Ordinance in dealing with the public in general and, in particular, with women and children and also comply with those provisions in letter and spirit.
55. Let a copy of this judgment be sent to respondent Nos. 5 and 6 for implementation of the aforesaid directions and report compliance to the Registrar of this Court within 4 (four) weeks from receiving copy of this order.
56. Let a copy of this judgment be also sent to respondent no. 1 Secretary, Ministry of Home Affairs, Government of Bangladesh to ensure due treatment of the public by the police force.
57. Although we were inclined to award costs to the petitioner, we refrain from doing so.