Sheikh Afil Uddin and another Vs. The Election Commission of Bangladesh, 4 LNJ (2015)

Case No: Writ Petition Nos. 328 and 329 of 2014

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Rafique-ul-Huq,Mr. M. K. Rahman,Mr. Sherder Abul Hossain,,

Citation: 4 LNJ (2015)

Case Year: 2015

Appellant: Sheikh Afil Uddin and another

Respondent: The Election Commission of Bangladesh

Subject: Election Commission , RPO,

Delivery Date: 2014-02-20


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Mirza Hussain Haider, J
And
Muhammad Khurshid Alam Sarkar, J


Judgment on
20.02.2014
  (1) Sheikh Afil Uddin
…Petitioner
(In W. P. No. 328 of 2014)
And
(2) Md. Monirul Islam
…Petitioner
(In W. P. No. 329 of 2014)
Versus
The Election Commission of Bangladesh.
. . . Respondents
(In Writ Petition Nos. 329 of 2014 and 329 of 2014)
 
Constitution of Bangladesh, 1972
Article 102(2)
The High Court Division in the fit and proper cases, for example, where an action taken or order passed by a Government or any statutory body or even any Constitutional body is exfacie illegal, malafide, or the same suffers from malice-in-law or quorum non-judice in carrying out its functions within administrative capacity, entertains writ petitions inspite of the existence of alternative forums. But the High Court Division does not usually interfere with an action or order of the said bodies when they act within judicial or quasi-judicial capacity and unless the said issues have been dealt with and adjudicated upon by the said judicial or quasi-judicial bodies themselves. . . . (15)

Constitution of Bangladesh, 1972
Article 102(2)
There is a fundamental difference between an action taken or the decision made by the government or any Constitutional or statutory body and the proceedings initiated or trial commenced by the said bodies; meaning that when any proceeding is pending before any judicial or quasi-judicial body, this Court is usually reluctant to interfere with the said proceedings save in a rare of the rarest case as this Court adheres to the long established age old principle that “a person cannot pursue two parallel remedies in respect of the same matter at the same time” inasmuch as it is the common law policy that when there is an availability of alternative remedy, the jurisdiction of the High Court Division should not be invoked directly, which has been enshrined in Article 102(2)(a) of our Constitution in the following words: “If satisfied that no other equally efficacious remedy provided by law.”...(16)

Constitution of Bangladesh, 1972
Article 102(2)
Subject to the ‘satisfaction’ of this Court, a writ petition may be entertained. It appears from the words employed in the said Article that ‘if satisfied’ strongly suggests that this ‘Special original jurisdiction’ of the High Court Division may be invoked only upon the satisfaction of the High Court Division as to the non-availability of the ‘other equally efficacious remedy’ (underlined for emphasize). In our view, the scrutiny as to the competency of invoking this ‘Special original jurisdiction’ is required to be made by this Court before issuance of any Rule, not by issuing of any Rule in view of the clear and unambiguous words of our Constitution ‘if satisfied.’. . . (19)

Constitution of Bangladesh, 1972
Article 102(2)
There are classifications in the alternative forum. Some forums are administrative appellate forum created by the ordinary statutory provisions and some forums are created under the mandate of the Constitution such as the Election Commission. The bottom line is that the High Court Division has always been reluctant to interfere with the functions of any Constitutional body unless the said Constitutional body transgresses its power and acts beyond its jurisdiction. ...(20)

Representation of People Order
(P.O. No. 155 of 1972)
Article 91E
A plain reading of article 91E it appears that the above provisions ousts the previous statements of the different provisions of the RPO as it ushers with the words “notwithstanding contained in this Order or rules”. Thus, one may take and interpret this article to be a special power of the Election Commission. . . . (21)

Constitution of Bangladesh, 1972
Article 102(2)
Representation of People Order
(P.O. No. 155 of 1972)
Article 91D
When this Court issues any show cause notice/Rule, be it wrongly, it is the usual practice of our Appellate Division not to interfere with it but to give direction upon the High Court Division to dispose of the same and, thus, Election Commission as a Constitutional body when performs its function within its quasi-judicial jurisdiction under article 91D of the RPO and issues any notice, the correctness or wrongness of issuance of the same may also be adjudicated upon by it. . . . (23)

 
Constitution of Bangladesh, 1972
Article 119
Representation of People Order
(P.O. No. 155 of 1972)
Articles 12(1)(D), 17, 19,, 39, 81, 91A, 91B, 91D, 91E
নির্বাচন কমিশন আচরন বিধিমালা, ২০০৮
বিধি ২(৬)
From our concurrent reading of Article 119 of our Constitution in tandem with articles 12(1)(D), 17, 19, 39, 81, 91A, 91B, 91D, 91E of RPO and Rule 2(6) of নির্বাচন কমিশন আচরণ বিধিমালা, ২০০৮ it appears that the Election Commission is amply empowered to take cognizance of any allegation brought by any person, including a candidate, an agent and the persons who are employed for conducting the election, and, thereby, take necessary action against any candidate during the time of election, including ordering for repoll. Thus, in view of the fact that the Election Commission has already initiated a proceeding, be it within the scope of RPO or under the misconception of any provisions of the said law, and since the petitioners already have explained their position before them and, further, before issuance of this writ petitions the Election Commission was in seisin of the matter, this Court is of the opinion that the Election Commission is in a convenient position to adjudicate upon the allegation brought against the petitioners. Accordingly, we are led to hold that these writ petitions are pre-nature as the impugned notices are being awaited to be disposed of by an apparently competent quasi-judicial body upon the hearing of the parties.  However, in carrying out the above exercise, this Court would not delve into deciding the issue as to whether the actions of the Election Commission was legal or illegal and if we inadvertently fail to resist our temptation of expressing our views, it should be ignored. . . . (24, 25 and 27)

Representation of People Order
(P.O. No. 155 of 1972)
Article 19
The Election Commission after receiving return of the election from the Returning Officers under article 19(2) of the RPO should publish the Gazette Notification of the Returned Candidates at its earliest convenience given that taking the advantage of absence of the provisions in between clauses 1, 2 & 3 of article 19 as to any time period for publication of the Gazette Notification of the Returned Candidates, respondent no. 1 cannot make unreasonable delay in publication of the Gazette Notification. However, it would not be an unreasonable delay if the names of the uncontested candidates are published in the Gazette Notification together with all other candidates, be contested or uncontested candidates, at one time after holding the National Election in view of the fact that the said practice has been followed by the Election Commission of our country since its inception. . . . (29)

Representation of People Order
(P.O. No. 155 of 1972)
Article 19
Result was declared by the Returning Officer under article 19(1) and the Election Commission was duty bound to publish the result under article 19(3) where the word “shall” has been used, therefore, provisions laid down in a delegated legislation such as Code of Conduct, 2008, which has been framed under the authority of the RPO, cannot override the provisions of the RPO so as to catch the petitioner’s all activities took place after 13.12.3013 until publication of the Gazette Notification as the conducts of নির্বাচন পূর্ববর্তী সময় as defined in Code no. 2(6) of the Code of Conducts, 2008. . . . (34)

Representation of People Order
(P.O. No. 155 of 1972)
Article 12
Unless a person is convicted he shall not be disqualified to (i) be elected as a MP or (ii) to continue as a MP. . . . (38)

Representation of People Order
(P.O. No. 155 of 1972)
Article 89A
Except the members of the law enforcing agency, the officers responsible for conducting the election may be authorized by the Election Commission to take cognizance of the offence alleged and, thereby, conduct the trial of the said offence. . . . (39)

Representation of People Order
(P.O. No. 155 of 1972)
Article 91A
The Electoral Enquiry Committee is empowered to inquire into any offence under the RPO and upon carrying out the inquiry it can only make recommendation for Election Commission but the Committee does not possess any power to impose any fine or penalise any one. The Election Commission, then, can ask any person to implement the Committee’s recommendation. . . .(44)

Obitar Dicta
Incorporation of the definition of ‘নির্বাচন পূর্ব-সময়’ in the RPO could strengthen the position of the Election Commission in dealing with the incidents that take place from the date of announcement of the election schedule till the date of publication of the names of the returnted candidates in the Gazette Notification.        . . . (46)

Marbury Vs. Madison 2 Law Edition, USSCR 135; AFM Shah Alam Vs. Mujibull Huq, 41 DLR (AD) 68; Mahmudul Haque (Md.) Vs. Md Hedayetullah and others, 48 DLR (AD) 128; AKM Mayeedul Islam Vs. Bangladesh Election Commission and others, 16 BLD (AD) 204; DR. Mohiuddin Khan Alamgir Vs. Bangladesh, 62 DLR (AD) 425; Altaf Hossain Vs. Abul Kashem, 45 DLR (AD) 53; Afzal Hossain Vs. Chief Election Commissioner, 45 DLR 255, Kunda S Kadam Vs. K K Soman, AIR (1980) SC 881; Srivastava KK Vs. Bhupendra Kumar Jain, (1977) 2 SCC 494; Sree Ramdas Motor Transport Ltd. Vs. Tadi Adhinarayana, (1997) 5 SCC 446; Punjab Vs. Punjab Fibres Ltd., (2005) 1 SCC 604 and ACC Vs. Enayetur Rahman, 64 DLR (AD) 14 ref.
 
Mr. Rafique-ul-Haque with
Mr. M Quamrul Haque Siddique,
Mr. AKM Alamgir Parvez,
Mr. Md. Bazlur Hasan,
Mr. Md. Ashiq-ul-Haque,
Mr. Md. Sayed jakir Hossain,
Ms. Sageda Sultana,
Mr. Partha Sarathi Mondal and 
Ms. Shamima Akhter, Advocates,
....For the petitioners (In writ petition no. 328 of 2014 and 329 of 2014).

Mr. M.K. Rahman with
Mr. Tawhidul Islam and
Mr. Sanian Rahman, Advocates,
. . . For respondent no. 1 (In both the writ petitions)

Mr. Sherder Abul Hossain, Advocate,
. . . For respondent No. 2 (In both the writ petitions)

Writ Petition Nos. 328 and 329 of 2014

JUDGMENT
Muhammad Khurshid Alam Sarkar, J:
 
Since both the writ petitions involve same law points and the facts of these two writ petitions being almost similar having been originated from a single incident took place during the 10th National Parliamentary Election, they are taken up together for hearing and disposed of by this single judgment.
 
In writ petition no. 328 of 2014 the facts of the case, succinctly, as stated in the writ petition, are that when the Election Commission declared schedule for 10th Parliamentary General Election, the petitioner (hereinafter referred to as Mr. Sheik Afil-Uddin) as a candidate of Bangladesh Awami League submitted his nomination paper for constituency no. 85, Jessore-1. At the phase of scrutiny on 13.12.2013, since there was no other contesting candidate, the Returning Officer under his seal and signature declared Mr. Sheikh Afil-Uddin as the Returned Candidate for the said constituency no. 85, Jessore-1 by a public notice under article 19(1) of the Representation of the People Order, 1972 (hereinafter referred to as RPO) when the copy of the same was supplied to Mr. Sheikh Afil-Uddin by the Returning Officer and, that is how, Mr. Sheikh Afil-Uddin was elected as an MP and he was merely waiting to get his name published in the Gazette Notification. On 01.01.2014 one Md. Shahin-Ul-Kabir, the election agent of a candidate against the Awami League nominated candidate for another seat namely constituency no. 86 of Jessore-2 lodged a complaint to the Election Commission alleging that Mr. Sheikh Afil-Uddin has committed offences under the RPO as he conspired with the workers and supporters of the Awami League uttering that he shall ensure the victory of Mr. Monirul Islam (petitioner in writ petition No. 329 of 2014) by any means by engaging at least 100 workers in various polling stations to cast as much vote as required for the victory of the said Awami League candidate Mr. Monirul Islam, which was published in the several news papers of the country. Pursuant to lodging the aforesaid complaint, the Election Commission formed an Electoral Inquiry Committee who, upon carrying out the inquiry, found the allegation to be true. After holding the National Election on 05.01.2014 in whole of the country the Election Commission, on 07.01.2014, issued a notice upon Mr. Sheikh Afil-Uddin directing him to show cause as to why his candidature shall not be cancelled for the allegation brought against him by the said Mr. Shahin-Ul-Kabir. On 15.01.2014 Mr. Sheikh Afil-Uddin replied to the show cause notice denying the charges and explaining his position contending, inter alia, that he was declared a Returned Candidate by the Returning Officer on 13.12.2013 as an uncontested candidate and as a worker of Awami League he had been to Jessore-2 constituency to lend political support to Mr. Monirul Islam,  the candidate of Awami League for the said constituency, but he never did anything which comes within the purview of election offence or corrupt practice or vote rigging and, in fact, on 05.01.2014 on the date of election there was no vote rigging or corrupt practice and no election offence took place therein or there was no other allegation in the election of Jessore-2 constituency. It was stated that out of enmity with Mr. Sheikh Afil-Uddin, the opposition candidate against Mr. Monirul Islam with an ill motive created a fake C.D in the name of Mr. Sheikh Afil-Uddin. It is further stated that the Electoral Enquiry Committee did not hold any enquiry in presence or within the knowledge of Mr. Sheikh Afil-Uddin and he was not given any opportunity to defend himself. Thereafter, when on 08.01.2014 the Election Commission published the result of the 10th National Parliamentary Election held on 05.01.2014 in the official Gazette, the name of Mr. Sheikh Afil-Uddin was not included in the said official Gazette dated 08.01.2014. In the aforestated premises, Mr. Sheikh Afil-Uddin being aggrieved by the said action of the Election Commission approached this Court as a petitioner and obtained the instant Rule.
 
In writ petition no. 329 of 2014 the stated facts of the case, briefly, are that the petitioner (Mr. Monirul Islam), having been nominated by the Bangladesh Awami League as a candidate in the 10th National Parliamentary Election, submitted his nomination paper for constituency no. 86 of Jessore-2 and, at the stage of scrutiny, his nomination paper was found to be valid and after the withdrawal of the nomination papers of other 2 contesting candidates, there were only 2 contesting candidates namely, Mr. Monirul Islam (the petitioner) and Mr. Rafiqul Islam (the added respondent no. 2). On 05.01.2014 polling took place at all the 72 polling centers and, after free, fair and peaceful and uncorrupted casting of votes in all the pooling centers, counting of the votes was completed peacefully by the Presiding Officers of all the polling centers and upon signing their respective result sheets they handed over the same to the Returning Officer and after receiving all the result sheets of all the polling centers the Returning Officer consolidated the result and having found Mr. Monirul Islam with the highest number of votes, on 06.01.2014 the former under his seal and signature declared the latter as a Returned Candidate by a public notice under Article 39(1) of the RPO. Meanwhile, one Mr. Shahin-Ul-Kabir, an election agent of respondent no. 2 (opposition candidate against him), lodged complaint on 01.01.2014 alleging that on 30.12.2013 Mr. Sheikh Afil Uddin made a promise to the Bangladesh Awami League supporters and workers that he shall do everything for the victory of Mr. Monirul Islam by engaging 100 workers at different polling stations, which was published in the several news papers of the country. On an enquiry the Electoral Enquiry Committee found the allegation to be true. Thereafter, on 07.01.2014 the Election Commission issued the impugned notice upon Mr. Monirul Islam directing him to show cause as to why his candidature shall not be declared illegal for the allegation brought against him by one Md. Shahin-Ul-Kabir. Pursuant to the said show cause notice Mr. Monirul Islam replied on 15.02.2014 denying the charges against him and explained his position. He stated in the said reply that Mr. Sheikh Afil Uddin visited his constituency as a leader of the Awami League to lend support to him but he never got involved in any corrupt practice and, most importantly, no offence of vote rigging or any corrupt practice took place on the date of national election in this constituency. The allegation brought against him and Mr. Sheikh Afil Uddin is nothing but a sheer conspiracy against them. The Election Commission, then, on 08.01.2014 published the result of the 10th National Parliamentary Election held on 05.01.2014 vide publication of the Gazette Notification when the name of Mr. Monirul Islam was not included in the said Official Gazette and having not found his name in the official Gazette Mr. Monirul Islam approached this Court as the petitioner and obtained this Rule.
 
In both the writ petitions the Election Commission (respondent no.1) and Mr. Rafiqul Islam (added respondent no. 2) who is the contesting candidate against Mr. Monirul Islam entered their appearances by filing separate sets of affidavits-in-opposition. In the affidavit-in-opposition filed by respondent no. 1, it is stated that when respondent no. 1 declared the schedule of the 10th Parliamentary Election in all parliamentary constituencies of the country as per the provisions of RPO, it appointed the Returning Officers and the Assistant Returning Officers for the said election throughout the country. In writ petition no. 328 of 2014 Mr. Sheikh Afil-Uddin was found to be the sole candidate in the constituency no. 85 of Jessore-1and since there was no other candidate in the said constituency the relevant Returning Officer after his scrutiny on 13.12.2013 declared him as the ‘Returned Candidate’ for the said constituency vide public notice dated 13.12.2013. When one Md. Shahin-Ul-Kabir lodged a complaint to respondent no. 1 on 01.01.2014 bringing some allegation against Mr. Sheikh Afil-Uddin that he has committed offence under RPO as he openly declared that the victory of Mr. Monirul Islam shall be ensured by hook or crook engaging 100 workers at the different polling stations, the said allegations was enquired into by the Electoral Enquiry Committee who submitted its report on 03.01.2014 confirming the veracity of the said election and found violation of the Code of Conduct by Mr. Sheikh Afil-Uddin. Then, respondent no. 1 issued a show cause notice upon both the writ petitioners Mr. Sheikh Afil-Uddin and Mr. Monirul Islam on 07.01.2014 asking them to show cause as to why their candidatures shall not be cancelled and both of them on 15.01.2014 replied to the said show cause notices. Respondent no. 1 after receiving the said replies from both the writ petitioners decided to afford personal hearing to both of them and issued letters to them on 21.01.2014 fixing 27.01.2014 as the date for personal hearing. While the matter was pending before respondent no. 1 who was about to dispose of the same, both the writ petitioners filed the present writ petitions seeking a direction upon respondent no. 1 to publish their respective results of the Parliamentary Election in the Official Gazette. Respondent no.1, on 27.01.2014, under the compelling circumstances decided to postpone the personal hearing of both the writ petitioners as the High Court Division was in seisin of the matters.
 
Respondent no. 2 by filing a separate affidavit-in-opposition stated that both the writ petitions have been filed by suppressing some relevant facts necessary for disposal of this writ petitions; such as, both the writ petitioners appeared before the Electoral Enquiry Committee and made their respective representations therein but in their writ petitions they have totally denied the aforesaid facts. It is stated that after registering the complaint by respondent no. 2 with respondent no. 1, steps were taken to enquire into the matter and Election Enquiry Committee was formed to adjudicate upon the complaint but due to seeking adjournment by both the petitioners, there was no final resolution before the election held on 05.01.2014. It is stated that both the writ petitioners are, in fact, attempting to bypass the consequence of the offence committed by them by filing these writ petitions. The rest of the statements made by this respondent are mere repetition of the statements made by the respondent no. 1 in its affidavit-in-opposition.
 
Mr. Rafique-ul-Haque, along with Mr. M. Kamrul Haque Siddique, the learned advocates, appeared for both the writ petitioners. However, Mr. Haque inspired Mr. Siddique to take the lead role in making submissions before this Court. At the very outset of placing the petitioners’ cases, Mr. Siddique refers to annexure-A to both the writ petition and submits that these are public notices published by the Returning Officers and these public notices can be published only by the Returning Officers, as per the provisions of RPO, not by the Election Commission or any other authority. Mr. Siddique submits that the Returning Officers for Parliamentary Election are appointed by respondent no. 1 but in performing their functions and exercising their power, they are independent entity and respondent no. 1 cannot dictate them to refrain from publishing the said public notice once the election is held peacefully without any allegation of vote rigging or other corrupt practice and, more importantly, after publication of the aforesaid public notice by the Returning Officer, respondent no. 1 does not have any authority to withhold publication of the Gazette Notification as  per the provisions of article 19(1), 19(2) and 19(3) of the RPO as the aforesaid law contemplate that after the election is held uncontested the result is to be declared by the Returning Officer and after the declaration of the result by the Returning Officer, respondent no. 1 has no option but to publish the Gazette Notification. By placing the provisions of article 39(1), 39(2), 39(3) and 39(4) of the RPO Mr. Siddique submits that respondent no. 1 after the Returning Officer’s declaration under article 39(1) of the RPO must complete the formality of the publication of the Gazette Notification as quickly as possible without making any delay; otherwise their failure may result in rendering the spirit of our Constitution and scheme of the RPO nugatory. In an endeavour to substantiate his arguments he submits that respondent no. 1 is duty bound to take next step as envisaged in articles 19 (3) and 39(3) after completion of the tasks under articles 19(1) & 19(2) and articles 39(1) & 39(2) as respondent no. 1 being a Constitutional body cannot behave like a natural person as per its whims and wishes, rather it is obliged to act in accordance with the provisions of the law as enshrined in the RPO and the Rules framed thereunder. In a bid to augment his deliberation on this point Mr. Siddique refers to the celebrated case of Marbury Vs. Madison reported in 2 Law Edition USSCR 135 and submits that once the Returning Officer has declared the result by publication of public notice, the publication of Gazette Notification by respondent no. 1 remains to be observed as a mere formality. He places Article 72(2) and 148 of the Constitution and submits that the above Constitutional provisions have been made nugatory by not publishing the names of the petitioners in the Gazette Notification within thirty days from 08.01.2014 when the names of all other candidates having been declared Returned under articles 19(1)&39(1) were published in the Gazette Notification.  Then, he refers to annexure-B to the writ petition and questions the jurisdiction and power of respondent no. 1 in proceeding with the complaints as he claims that the petitioners are the Returned Candidates in the eye of law and the 10th Parliamentary Election having been completed Election Tribunal has already been set up and, thus, the matter should be dealt with and adjudicated upon by the Election Tribunal only. In support of his submission on this point he refers to the cases of AFM Shah Alam Vs Mujibull Huq 41 DLR (AD) 68, Mahmudul Haque (Md.) Vs Md Hedayetullah and others 48 DLR (AD) 128, AKM Mayeedul Islam Vs Bangadesh Election Commission and others 16 BLD (AD) 204 and DR. Mohiuddin Khan Alamgir Vs Bangladesh 62 DLR (AD) 425. He further submits that interpretation of several articles of the RPO is required for fair disposal of the allegations brought against the petitioners and, therefore, this Court being the only competent authority to interpret the law, the matters are beyond the jurisdiction of the Election Commission. He finally submits that the petitioners are happy and willing to face the proceedings pending before respondent no. 1 having been arisen out of the complaint lodged by respondent no. 2 but respondent no.1 cannot withhold the publication of Gazette Notification on the plea of pendency of that proceeding inasmuch as they are now elected MPs of the 10th Parliament and, thus, if the outcome of the proceedings pending before respondent no. 1 goes against the petitioners towards acquiring a disqualification to remain as an MP under Article 66 of our Constitution, it may be notified to the Hon’ble Speaker who will then proceed in accordance with the relevant provisions of the Constitution and other relevant law. By making the aforerecorded submissions the learned advocate for the petitioners prays for making the Rule absolute.
 
Per contra, Mr. M.K. Rahman, the learned advocate, appearing for respondent no. 1, submits that that the Election Commission having been constituted under Article 118 of the Constitution is responsible to undertake the election related functions of the country as have been enumerated in Article 119. Mr. Rahman takes us through articles 12, 17, 81(1)(F), 91(A), 91(B), 91D, 91(E) & 92 of the RPO, Rule 8 & 27 of the নির্বাচন পরিচালনা বিধিমালা, ২০০৮ (hereinafter referred to as বিধিমালা, ২০০৮) and Code no. 2(6) of the নির্বাচনে রাজনৈতিক দল ও প্রার্থীর আচরণ বিধিমালা, ২০০৮ (hereinafter referred to as Code of Conducts, 2008) and submits that Election Commission is amply empowered to take any steps for ensuring free, fair and just election including conducting investigation as to any allegation of corrupt practice, violation of the Code of Conducts brought by any candidate, agent or anyone during the poll time and passing an order or direction for re-poll. By referring to annexure-B to the writ petition he submits that the Election Commission has rightly issued the notices as after carrying out the enquiry by the competent authority i.e. Electoral Enquiry Committee, which had found the allegations brought against the petitioners to be true, it was revealed that the conducts of both the writ petitioners do fall within the ambit of the provisions of article 81(1)(f) of the RPO and, thus, the Election Commission being duty bound under article 91E of the RPO to proceed further with the complaint, has issued the impugned notices to the petitioners. He emphasizes on the fact that when the petitioners replied to the said show cause notices they ought to have waited for the decision of the Election Commission and, as such, Mr. Rahman terms the action of the petitioners in filing these writ petitions to be pre-mature. He places the definition of ‘নির্বাচন পূর্ব সময়’ as provided in Code no. 2(6) of the Code of Conducts, 2008 and submits that the election time includes from the date of declaration of the schedule till publication of the Gazette Notification and the Election Commission, having not published the Gazette Notification for these two constituencies, is empowered to take any step including making enquiry into any allegation under article 91E of the RPO and, thereafter, ordering for re-poll therein under article 17 of the RPO in necessary. He submits that Rules 8 and 27 of the Rule, 2008 contemplate that the Returning Officer cannot make any declaration or issue public notice under article 19(1) or under 39(1) of the RPO without having written approval from the Election Commission. He finally submits that Section 21of the General Clauses Act, 1897 empowers the Election Commission to amend, vary or even rescind those public notices inasmuch as no vested right has been accrued by the petitioners before the election results of the petitioners reach to its finality by publication of the Gazette Notification. 
 
Mr. Sharder Abul Hossain, the learned advocate appearing for respondent no. 2, in addition to adopting the submissions advanced by the learned advocate for respondent no. 1, adds that the Election Commission should be allowed to proceed with the proceedings pending before it having been culminated from the inquiry of the Electoral Enquiry Committee which had found the veracity of the allegation brought by this respondent and the said proceedings would succumb to unnatural death if this Court interferes with it at this juncture. In corroboration of his submissions he refers to the cases of Altaf Hossain Vs Abul Kashem 45 DLR (AD) 53 and Afzal Hossain VS Chief Election Commissioner 45 DLR 255 and submits that the Election Commission has the plenary power to act under Article 119 which is the reservoir of power for it to ensure fair election. By making the aforerecorded submissions, the learned advocate for the respondents pray for discharging both the Rules with costs. 
 
We have heard the learned advocates for both the sides, perused the writ petitions as well as affidavits-in-opposition together with the annexures appended thereto and the relevant laws and decisions placed before us and we have considered them very carefully.
 
The moot questions for consideration by this Court are whether the Election Commission has the power and jurisdiction to issue the impugned notices. In other words, this Court is to examine as to whether the impugned notices have been issued in accordance with the provisions of our Constitution and the RPO. Further, to examine as to whether the present writ petitions are pre-mature having the consequence thereto of being not maintainable when the Election Commission was in seisin of the matter.
 
Since the issue of maintainability of the writ petition on the ground of being pre-mature has been raised, the same may be taken up first for consideration and adjudication. It is an admitted position that Election Commission is in seisin of the matters. When the Election Commission issued annexure-B to both the writ petitioners asking them to show cause as to why their respective candidatures of 10th Parliamentary Election shall not be cancelled under Article 91E of the RPO accusing the petitioners for committing offences under article 81(1)(f) of the RPO within 10 days from the date of receiving of their respective notices and, in compliance thereto, both the writ petitioners vide annexure-C to the writ petitions furnished their explanations in details within the stipulated time with the following prayers:

“পরিশেষে আমার সবিনয় নিবেদন এই যে, মিথ্যা অভিযোগের দায় থেকে অব্যহতি দিয়ে আমাকে বাধিত করবেনz এই জবাবে লিখিত বক্তব্য এবং ঘটনা সম্পর্কিত অামার বক্তব্য সমূহের সমর্থনে আমি নিজে ব্যক্তিগত শুনানী করতে চাই এবং আইনের ব্যাখ্যা বিশ্লেষন সংশ্লিষ্ট বিষয়ে আইনজীবির মাধ্যমে শুনানীর সুযোগ দেওয়ার জন্য আবেদন করছি”
 
After receiving the said replies from the petitioners, the Election Commission fixed 27.01.2014 as the date for hearing of the complaints towards disposal of the same as per the requests made in the writ petitioners’ reply to give an opportunity for personal hearing. However, on the above day of hearing, the Election Commission suo-muto stayed the proceedings pending before them by the order appended as annexure-4 to the affidavit-in-opposition which may be quoted here under-

“দেখিলাম অদ্য যশোর-১ আসনের ও যশোর-২ আসনের প্রার্থীদ্বয়ের বিরুদ্ধে নির্বাচনী আচরণ বিধি ভঙ্গের অভিযোগে তাহাদের ব্যক্তিগত শুনানির জন্য ধার্য্য রহিয়াছেz ইতিমধ্যে উভয় প্রার্থী মাননীয় সুপ্রীম কোর্টের হাইকোর্ট বিভাগে দুইটি রীট পিটিশন করিলে মাননীয় হাইকোর্ট হইতে রুল ইস্যু করা সম্বলিত নোটিশ পাওয়া গিয়াছেz এমতাবসÛায় শুনানির বিষয়টি মাননীয় উচ্চ আদালতে বিচারাধীন বিধায় ব্যক্তিগত শুনানির কার্য্যত্র্ম সÛগিত করা হইল মাননীয় উচ্চ আদালতের আদেশ সাপেক্ষে পরবর্তী ব্যবসগ্রহণ করা হইবে ”  
 
From a close reading of the aforegoing order dated 27.01.2014 passed by the Election Commission, it appears that due to pendency of these writ petitions, the Election Commission decided to suo-muto stay the proceedings arisen out of annexure-B to both the writ petitions until they receive any direction from this Court.
 
From the chronology of events of these cases it transpires that annexure-B to the writ petitions were issued on 07.01.2014 and the petitioners of both this writ petitions replied thereto on 15.01.2014 and the instant writ petitions were filed on 10.02.2014. Thus, it is evident that both these writ petitions were filed after the petitioners submitted themselves to the jurisdiction of the Election Commission. Mr. Kamrul Haque Siddique put his best effort to cover-up this point by referring to the last line of paragraph no. 5 of the replies to the show cause notices (annexure-C to both the writ petitions) which runs as follows: “আমি গেজেট বিজ্ঞপ্তি প্রকাশের দাবিতে অতি সত্তর মাননীয় হাইকোর্ট বিভাগে রীট মামলা দায়ের করার পরামর্শ প্রাপ্ত হয়েছি”. In his bid to justify the filings of these writ petitions before this Court he submits that the petitioners, by replying to the show cause notices, had merely complied with the directions given by the Election Commission in annexure-B but they had informed the Election Commission that they are in the process of invoking writ jurisdiction against the actions of the Election Commission for non-inclusion of their names in the Gazette Notification dated 08.01.2014, which published for the purpose of according official recognition to all of the ‘Returned Candidates’ as Member of Parliaments of the 10th National Parliament. The above submissions advanced by the learned advocate Mr. Siddique could hardly persuade this Court inasmuch as from the prayer portion of the annexure-4 to the affidavit-in-opposition submitted by respondent no. 1 any one with ordinary prudence would come to a conclusion that the petitioners have totally surrendered themselves to the jurisdiction of the Election Commission for the disposal of the complaints.
 
The main ground for filing these writ petitions, as advanced in extensio by the learned advocate for the petitioner, is that since the Election Commission lacks jurisdiction to issue the impugned notices (annexure-B to both the writ petitions) there is a long line of decisions of our Apex Court that the High Court Division is well empowered to entertain writ petitions. True that the High Court Division in the fit and proper cases, for example, where an action taken or order passed by a Government or any statutory body or even any Constitutional body is exfacie illegal, malafide, or the same suffers from malice-in-law or quorum non-judice in carrying out its functions within administrative capacity, entertains writ petitions inspite of the existence of alternative forums. But the High Court Division does not usually interfere with an action or order of the said bodies when they act within judicial or quasi-judicial capacity and unless the said issues have been dealt with and adjudicated upon by the said judicial or quasi-judicial bodies themselves. Here, these cases have been filed against the actions taken by a quasi-judicial body performing its duty under article 91D of the RPO, which runs as follows:
 
Article 91D (1) The Commission, while making an enquiry under any provision of this Order, shall have, for the purposes of such enquiry, all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:-
(a)   summoning and enforcing the attendance of any person and examining him on oath;
(b)  requiring the discovery and production of any document or other material object producible as evidence;
(c)  receiving evidence on affidavit;
(d)  requisitioning any public record or any copy thereof from any Court or office;
(e)  issuing commission for examination of witnesses or documents.
(2) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Penal Code (XLV) of 1860).
(3) The Commission shall be deemed to be a civil Court within the meaning of sections 476, 480, and 482 of the Code of Criminal Procedure, 1898 (V of 1898). 
(4) The Commission shall have the power to regulate its own procedure.
(5) Any person holding an enquiry under any provision of this Order, under the authority or direction of the Commission shall have the same powers as are vested in the Commission under these Articles.]
 
However, when judicial or quasi-judicial body makes a decision upon hearing the parties, the High Court Division is competent to examine the legality or propriety of the said decision in the capacity of entertaining a writ of certiorari. So, there is a fundamental difference between an action taken or the decision made by the government or any Constitutional or statutory body and the proceedings initiated or trial commenced by the said bodies; meaning that when any proceeding is pending before any judicial or quasi-judicial body, this Court is usually reluctant to interfere with the said proceedings save in a rare of the rarest case as this Court adheres to the long established age old principle that “a person cannot pursue two parallel remedies in respect of the same matter at the same time” inasmuch as it is the common law policy that when there is an availability of alternative remedy, the jurisdiction of the High Court Division should not be ivoked directly, which has been enshrined in Article 102(2)(a) of our Constitution in the following words: “If satisfied that no other equally efficacious remedy provided by law”. Some celebrated cases may be referred to augment our foregoing view.
 
In the case of Kunda S Kadam vs K K Soman AIR (1980) SC 881, an in-service employee of Bombay Municipal Corporation applied for the post of Corporation with the recommendation of the Public-Service Commission. While the name was under consideration by the Bombay Municipal Corporation for appointment a writ petition was filed by respondent nos. 1 and 2 challenging the recommendation itself on the ground that the applicant did not fulfill the required statutory qualifications. Bombay High Court took the view that the applicant did not possess one of the qualifications required for appointment and quashed the recommendation. Supreme Court set aside the judgment of the High Court”. In the case of Srivastava KK vs Bhupendra Kumar Jain, (1977) 2 SCC 494, validity of the election of Madhya Pradesh Bar Council was challenged before the Election Tribunal. During pendency of the trial the petitioner approached the High Court under Article 226 of the Constitution and obtained an order. Supreme Court set aside the decision with the observation, inter alia, that when election petition covering the same subject-matter was actually pending, the High Court should not have entertained the petition. The Supreme Court described the interference as miss-exercise of the power of judicial review. In the case of Sree Ramdas Motor Transport Ltd. vs Tadi Adhinarayana, (1997) 5 SCC 446, a petition under sections 397 and 398 of the Companies Act alleging oppression of minority shareholders and mismanagement of the company affairs was filed in the Company Law Board. During pendency of the application a petition under Article 226 of the Constitution was filed seeking direction to the Central Government to investigate into the allegations against management by the CBI. High Court issued direction as prayed for. Supreme Court set aside the direction and observed that where statutory remedies were available and the matter was pending the High Court ought not to have passed the order. In the State of Punjab vs Punjab Fibres Ltd. (2005) 1 SCC 604, an assessee challenged the assessment before the Sales Tax Tribunal and the appeal was pending. During pendency of the appeal the assessee filed petition under Article 226 of the Constitution. Supreme Court held that the petition would not lie.
 
In our jurisdiction as well, in a series of decisions our Apex disapproved invocation of writ jurisdiction by circumventing the alternative forum. In a recent case, ACC Vs Enayetur Rahman, 64 DLR (AD) 14, when the ACC filed charge-sheet against the petitioner he invoked the writ jurisdiction for quashing the criminal proceedings and the High Court Division quashed the proceeding but the Appellate Division set aside the verdict on the ground that the High Court Division should not have entertained the writ petition when there is an alternative forum.
 
It appears that the petitioner has invoked the ‘Special Original Jurisdiction’ of this Court, apparently, under Article 102(2)(a)(ii) of our Constitution. Jurisdiction under Article 102(2), as a whole, is known as an extraordinary jurisdiction and the same is to be availed of only when there is ‘no other equally efficacious remedy’ available.  The framers of the Constitution have intended that the people, at first, must search for and approach an appropriate legal forum other than the Constitutional Court. It is only then the Constitutional Court should be availed of when the citizen will find that the state has not created any legal forum for them for vindication of their right and get the aspired remedy. Thereafter, subject to the ‘satisfaction’ of this Court, a writ petition may be entertained. Article 102(2) of our Constitution may be quoted in this context. ‘The High Court Division may, if satisfied that no other equally efficacious remedy is provided in law......’. It appears from the words employed in the said Article that ‘if satisfied’ strongly suggests that this ‘Special original jurisdiction’ of the High Court Division may be invoked only upon the satisfaction of the High Court Division as to the non-availability of the ‘other equally efficacious remedy’ (underlined for emphasize). In our view, the scrutiny as to the competency of invoking this ‘Special original jurisdiction’ is required to be made by this Court before issuance of any Rule, not by issuing of any Rule in view of the clear and unambiguous words of our Constitution ‘if satisfied’.
 
On top of it, there are classifications in the alternative forum. Some forums are administrative appellate forum created by the ordinary statutory provisions and some forums are created under the mandatory of the Constitution such as the Election Commission.  The bottom line is that the High Court Division has always been reluctant to interfere with the functions of any Constitutional body unless the said Constitutional body transgresses its power and acts beyond its jurisdiction. In these cases at hand, the Election Commission being a Constitutional body has issued the impugned notices under the power entrusted upon it by article 91E, which runs as follows:
 
Article 91E 205[91E. (1) Notwithstanding anything contained in this Order or rules, if it appears to the Commission on receiving an information from any source or written report that, any contesting candidate or his agent or any other person on his behalf, by his order or under his direct or indirect consent, engages or attempts to engage in any serious illegal activity or violates or attempts to violate any provision of this Order or rules or Code of Conduct for which he may be disqualified to be elected as a member the Commission may pass an order for an investigation of the matter giving the contesting candidate a reasonable opportunity of being heard.
(2) After receiving the investigation report under clause (1), if the Commission is satisfied that, the report was true, the Commission may, by a written order, cancel the candidature of such candidate and in that event the election shall be held among the other contesting candidates of the concerned constituency; and where only one person remains as a contesting candidate because of cancellation of candidature of the other contesting candidate, election shall be held under Article 17 for that constituency.
(3) Any order made under clause (2) shall be sent to the concerned candidate or his election agent by hand or by fax or by e-mail or by courier service or by any other possible means.
(4) The order made under clause (2) shall immediately be sent to the Returning Officer, Presiding Officer and other contesting candidates and the political party that has nominated such candidate.
(5) The order made under clause (2) shall be notified in the Official Gazette and in any other manner which the commission thinks fit.]
 
From a plain reading of article 91E it appears that the above provisions ousts the previous statements of the different provisions of the RPO as it ushers with the words “notwithstanding contained in this Order or rules”. Thus, one may take and interpret this article to be a special power of the Election Commission.
 
Thus, the Election Commission apparently has invoked the power given to it by article 91E and if there is a wrong assumption of power by the Election Commission, it also may be agitated by the petitioners before the Election Commission.
 
When this Court issues any show cause notice/Rule, be it wrongly, it is the usual practice of our Appellate Division not to interfere with it but to give direction upon the High Court Division to dispose of the same and, thus, Election Commission as a Constitutional body when performs its function within its quasi-judicial jurisdiction under article 91D of the RPO and issues any notice, the correctness or wrongness of issuance of the same may also be adjudicated upon by it. The submissions of Mr. Siddique as to incompetency of the Election Commission to interpret some provisions of the RPO appear to us to be irrelevant given that the Election Commission is not required to interprete any provisions of the RPO, rather the said body in performing its functions in the capacity of a quasi-judicial body would seek to apply the relevant provisions of the RPO construing the ordinary meaning thereof and, thereafter, to relate those provisions to the facts of these cases.
 
From our concurrent reading of Article 119 of our Constitution in tandem with articles 12(1)(D), 17, 19, 39, 81, 91A, 91B, 91D, 91E of RPO and Rule 2(6) of নির্বাচন কমিশন আচরণ বিধিমালা, ২০০৮ it appears that the Election Commission is amply empowered to take cognizance of any allegation brought by any person, including a candidate, an agent and the persons who are employed for conducting the election, and, thereby, take necessary action against any candidate during the time of election, including ordering for repoll. The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances.
 
Thus, in view of the fact that the Election Commission has already initiated a proceeding, be it within the scope of RPO or under the misconception of any provisions of the said law, and since the petitioners already have explained their position before them and, further, before issuance of this writ petitions the Election Commission was in seisin of the matter, this Court is of the opinion that the Election Commission is in a convenient position to adjudicate upon the allegation brought against the petitioners. Accordingly, we are led to hold that these writ petitions are pre-nature as the impugned notices are being awaited to be disposed of by an apparently competent quasi-judicial body upon the hearing of the parties. 
 
Should, now, this Court take up the other issues, including the legality of the impugned notices, for examination as it has already held that the writ petitions are pre-mature.
 
Usually, this Court does not fancy to embark upon dealing with factual issues of a case, where the question of maintainability is an issue for adjudication as in the event of discharging the Rule on the count of maintainability, the examination of other points or factual issues become redundant. However, for the sake of expeditious disposal of the matters pending before the Election Commission and for the convenience of the parties of these cases, we wish to discuss the annexures-A, B & C to both the writ petitions alongside the powers given to the Election Commission for publication of the result or withholding the same in tandem with its power to arrest the persons accused for committing offences under the RPO or the Code of Conducts, 2008 during poll time and also the powers to inquire into the allegations brought against any candidate or any other person and thereafter penalize the culprits by carrying out the scrutiny of the actions of the Election Commission, Returning Officer and the Electoral Enquiry Committee. However, in carrying out the above exercise, this Court would not delve into deciding the issue as to whether the actions of the Election Commission was legal or illegal and if we inadvertently fail to resist our temptation of expressing our views, it should be ignored.  
 
We may first take up the public notices circulated by the Returning Officers on 13.12.12 for Mr. Sheik Afiluddin and on 06.01.2014 for Mr. Monirul Islam under articles 19(1) & 39(1) of the RPO respectively (annexure-A to both the writ petitions). From the chronology of events and facts, as stated in the writ petition no. 328 of 2014, it appears that Mr. Sheikh Afil-Uddin was declared to be the Returned Candidate on 13.12.2013 by the Returning Officer vide circulation of the public notice under his seal and signature under article 19(1) of the RPO as there was no contesting candidate for the said constituency. Thereafter, the Returning Officer also performed his duty under article 19(2) by sending the ‘return’ of the election for Mr. Sheikh Afil-Uddin’s constituency and while, as per the provisions of article 19(3) of the RPO, respondent no. 1, though was supposed to publish the Gazette Notification, it decided not to publish his name and, instead, initiated proceedings against him which prompted Mr. Sheikh Afil-Uddin to approach this Court. We may profitably relate the above facts by looking at the provisions of article 19 of the RPO, which runs as follows:
 
Article 19 (1) Where, after scrutiny under Article 14, only one person remains as a validly nominated candidate for election as a member from a constituency or where after withdrawal under Article 16 only one person is left as a contesting candidate, the Returning Officer shall, by public notice, declare such candidate to be elected to the seat:
provided that if after scrutiny any candidate indicates that he intends to make an appeal under clause (5) of Article 14 against the rejection of his nomination paper, no person shall be declared elected uncontested until the period prescribed for filling such appeal has expired and no such appeal has been filed or, where an appeal is filed, until the disposal of such appeal.
(2) The Returning Officer shall submit to the Commission a return of the election in respect of which he has made a declaration under clause(1).
(3) The Commission shall publish in the official Gazette the name of the returned candidate.
 
From a plain reading of article 19(1) in tandem with 19(2) & 19(3), it appears that the law is silent about the time period for publication of the Gazette Notification of a candidate who has been declared elected as an uncontested candidate. It is the understanding of this Court from a concurrent reading of the clauses 1, 2 & 3 of article 19 of the RPO that the Election Commission after receiving return of the election from the Returning Officers under article 19(2) of the RPO should publish the Gazette Notification of the Returned Candidates at its earliest convenience given that taking the advantage of absence of the provisions in between clauses 1, 2 & 3 of article 19 as to any time period for publication of the Gazette Notification of the Returned Candidates, respondent no. 1 cannot make unreasonable delay in publication of the Gazette Notification. However, it would not be an unreasonable delay if the names of the uncontested candidates are published in the Gazette Notification together with all other candidates, be contested or uncontested candidates, at one time after holding the National Election in view of the fact that the said practice has been followed by the Election Commission of our country since its inception. It is not the case of Mr. Sheikh Afil Uddin (the petitioner in writ petition no. 328 of 2014) that before holding the Parliamentary Election on 05.01.2014 the name of another uncontested candidate of other constituency, after being declared as Returned Candidate by the Returning Officer, was published in the Gazette Notification but his name was not published. So, had his name been published with the names of other candidates on 08.02.2014 in the Gazette Notification there would have been no unreasonable delay or violation of any provisions of the RPO or discrimination against Mr. Sheikh Afil-Uddin by the Election Commission. As the Election Commission refrained from publication of Mr. Sheikh Afil-Uddin’s name in the Gazette Notification, he is now before this Court with a complaint of violation of article 19(3) of the RPO against the Election Commission. We now resist ourselves from expressing our mind as to whether there has been any violation of the provisions laid down in article 19(3) of the RPO by the Election Commission by not publication of the Gazette Notification for Mr. Sheikh Afil Uddin.
 
On the other hand, from the stated facts of writ petition no. 329 of 2014, it appears that Mr. Monirul Islam was declared as the Returned Candidate for the constituency no. 86, Jessore-2 by the Returning Officer on 06.01.2014 under article 39(1) of the RPO after the election was contested with respondent no. 2 and there was no allegation of vote rigging, corrupt practice or capturing any polling station or polling booth on the poll date on 05.01.2014. The alleged offence of connivance or conspiracy to have been committed by Mr. Sheikh Afil Uddin was taken place on  30.12.2014 and, thus, not on the poll date on 05.01.2014 and, further, the said allegation is not against Mr. Monirul Islam and the Electoral Enquiry Committee also did not find anything against Mr. Monirul Islam. So, given the above scenario it is to see whether respondent no. 1 was empowered to withhold the publication of Mr. Monirul Islam’s name in the Gazette Notification. In order to deal with the scenario, let us look at the provisions of article 39 of the RPO, which runs as follows:
 
Article 39 (1) The Returning Officer shall, after obtaining the result of the count under Article 37 or of the drawal of the lot under Article 38, declare by public notice the contesting candidate who has or is deemed to have received the highest number of votes to be elected.
(2) The public notice shall contain the name of, and the total number of votes received by, each contesting candidate as a result of consolidation under Article 37 or drawal of lot under Article 38.
(3) The Returning Officer shall, immediately after publication of the notice under clause (1), submit to the Commission a return of the election in the prescribed form together with a copy of the consolidated statement.
(4) The Commission shall publish in the official Gazette the name of the returned candidate.
 
From the perusal of clauses 1-4 of article 39 and clauses 1-3 of article 19 of the RPO, it is the understanding of this Court that, in the absence of any negative findings against Mr. Monirul Islam by the Electoral Enquiry Committee, as soon as the General Election was held and the Returning Officer declared his name as the Returned Candidate by circulation of the public notice on 06.01.2014 under article 39(1) of the RPO, the Election Commission was duty bound to publish his name in the Gazette Notification dated 08.01.2014 along with the names of other Returned Candidates throughout the country both under article 39(1) and under article 19(1) of the RPO. However, the above observation is not to be taken as this Court’s conclusionary view on the interpretation of the articles 19 & 39 of the RPO as we refrain from taking any views on the action of respondent no. 1 for now.
 
Let us now deal with annexure-B to both the writ petitions by which the Election Commission brought accusations of committing offence under article 81(1)(f) of the RPO against both the petitioners and, thereby, initiated proceedings against them under article 91E of the RPO aiming at cancellation of the polls under article 12(1)(D) of the RPO consequenting a repoll under Article 17 of the RPO. Let us look at the provisions of the above mentioned article 81(1)(f) of the RPO, which is as under:
 
“Except as provided in clause (2) a person is guilty of an offence punishable with rigorous imprisonment for a term which may extend to seven years and shall not be less than three years, and also with fine, if he-
(a)................................
(b).................................
(c).................................
(d)................................
(e)................................
(f) In the furtherance of the prospect of the election of a contesting candidate or to subvert election, captures, or abets or connives at, the capturing of, a polling station or polling booth-” (underlined by us)
 
From a plain reading of the said article it appears that if any one commits the offence of capturing, or abetting or conniving of capturing the polling station or polling booth either to favour any of the candidates or undermines the election, the said person may be imprisoned for a term of 7 (seven) years and the minimum period of which may be 3(three) years. Then, the next question becomes pertinent to examine as to whether the petitioners have already been found ‘guilty of the aforesaid offence’, the words employed in article 81(1) (f). Here, the purpose of the use of the word “guilty” is to be minutely examined as the legislature consciously avoided the use of the word “accused”.
 
In order to carry out the said scrutiny, let us look at the provisions of Articles 12(1)(d), 17, 91D & 91E. Among the said articles, 91E has already been quoted hereinbefore and from the concurrent reading of the clauses 1-5 of this article, it appears that the said clauses, as a whole, seek to provide us an understanding that the provisions of this article is meant and, thereby, applicable for pre-election offences or occurrences. Now, the question is whether the alleged offence of conniving to capture the polling station with the aid of 100 workers by Mr. Sheikh Afiluddin took place during pre-election period or post election period. If it is taken that the election of Mr. Sheikh Afil-Uddin has been completed on 13.12.2013 and his result ought to have been published in Gazette Notification before 30.12.2013, no question would have arisen for the Election Commission to issue annexure-B towards cancellation of his ‘candidature’, rather the Election Commission’s proceedings would have been aimed at making him disqualified to remain as an MP as the occurrence would have been treated to be one acquiring a disqualification after becoming an MP. Given the above scenario of the writ petition no. 328 of 2014, we find a two-fold situation for the said writ petitioner Mr. Sheikh Afil-Uddin; the first situation is, since by operation of rule 2(6) of the Code of Conduct of 2008 Mr. Sheikh Afil-Uddin’s activities during pre-poll period are regulated by the provisions of the said Code and the said ‘pre-poll period’ being the time period from the date of announcement of the schedule till publication of the Gazette Notification under article 39(4) and his name being not published in the Gazette Notification on 08.01.2014, therefore, the alleged connivance for capturing the polling stations by employing 100 workers might attrack the provisions of article 81(1)(f) of the RPO. The second situation is; since Mr. Sheikh Afil-Uddin’s result was declared by the Returning Officer under article 19(1) and the Election Commission was duty bound to publish the result under article 19(3) where the word “shall” has been used, therefore, provisions laid down in a delegated legislation such as Code of Conduct, 2008, which has been framed under the authority of the RPO, cannot override the provisions of the RPO so as to catch the petitioner’s all activities took place after 13.12.3013 until publication of the Gazette Notification as the conducts of নির্বাচন পূর্ববর্তী সময় as defined in Code no. 2(6) of the Code of Conducts, 2008. On the other hand, to level accusation against Mr. Monirul Islam that he is guilty of the offence under 81(1)(f), the Election Commission have to show his involvement or abatement in capturing the polling station, which apparently is not available in the findings of the Electoral Enquiry Committee’s report.
 
Let us now look at the provisions of article 17 of the RPO, which is as under:
 
Article 17 (1) If a validly nominated candidate who has not withdrawn his candidature dies, 61 [or if his candidature is cancelled under clause (2) of Article 91E,] the Returning officer shall, by public notice, terminate the proceedings relating to that election.
(2) Where proceedings relating to an election have been terminated under clause (1), fresh proceedings shall be commenced in accordance with the provisions of this Order as if for a new election 62 [:Provided that it shall not be necessary for the other contesting candidates to file fresh nomination papers or make a further deposit under Article 13.]
 
Article 17 read with article 91E (2) of the RPO contemplate provisions for either to conduct election with at least 2 candidates or after cancellation of the candidature of an accused under article 81(1)(f) of the RPO to postpone the election where only one candidate remains in the aforesaid process. It has not been made clear to this Court by the learned advocate of the Election Commission as to why it did not decide to withhold the election of constituency no. 86 Jessor-2 when the Electoral Enquiry Committee found the veracity of the offence of connivance to capture the poll centres inasmuch as upon carrying out the investigation at that stage if the candidature of Mr. Monirul Islam would have been cancelled, there would have been a new schedule for the election of the Jessore-2 Constituency and, on the other hand, if he would have been found not guilty’ without any consequence to his candidature, the Election Commission could have proceed for election with Mr. Monirul Islam and respondent no. 2 within a few days of the disposal of the complaint. However, article 17 hardly comes into play for the case of Mr. Sheikh Afil Uddin as his election, apparently, had been completed well before the occurrence under article 81(1)(f) of the RPO. 
 
Let us look at the provisions of article 12(1)(d) of the RPO, which runs as follows:
 
Article 12(1) Any elector of a constituency may propose or second for election to that constituency, the name of any person qualified to be a member under clause (1) of Article 66 of the Constitution:
Provided that a person shall be disqualified for election as or for being, a member, if he-
(a)..................
(b)..................
(c) .................
(d) is a person who is convicted of an offence punishable under Article 73, 74, 78, 79, 80, 81, 82, 83, 84 and 86 and sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since the date of his release; (underlined by us)
 
Our lucid understanding of the reading of article 12 is that unless a person is convicted he shall not be disqualified to (i) be elected as a MP or (ii) to continue as a MP. Now, the question comes up for consideration that if the Election Commission decides to cancel the candidatures of the petitioners, whether they are required to be tried first by the First Class Magistrate under article 89A of the RPO, which runs as follows:
 
Article 89A Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), any person for the time being performing any duty in connection with an election, excluding any member of a law enforcing agency, may, if authorized by the Commission, by general or special order, in this behalf-
  1. exercise the powers of a Magistrate of the first class under the said Code in respect of the offences punishable under 176[ Article 73(2B), 74(2A), (3), (4), (5), (6),], Article 78, Article 79, Article 80, Article 81(1) and Article 82; and
  2. take cognizance of any such offence under any of the clauses of sub-section (a) of section 190 of the said Code,
and shall try any such offence in a summary manner in accordance with the provisions of the said Code relating to summary trials.]
 
From a reading of the above article 89A it appears that, except the members of the law enforcing agency, the officers responsible for conducting the election may be authorized by the Election Commission to take cognizance of the offence alleged in these writ petition and, thereby, conduct the trial of the said offence. Now, the question is whether the cognizance has already been taken and, secondly, whether the election Commission vide the pending proceeding will commence the trial of the offence.     
 
Now, the crucial question falls for consideration is that after holding the 10th parliamentary election on 05.01.2014 and after the Returning Officer’s declaration under articles 19(1)&39(1), whether Election Commission ought to have published the petitioners’ name in Gazette Notification and, side by side, continue with the proceedings and, in the event that if they are convicted, then the Election Commission would invoke article 66 of the Constitution. Here, the Election Commission opted for not publishing their names in order to cover their actions under Code no. 2(6) of the Code of Conducts, 2008, which is as under:
 
‘‘নির্বাচনি-পূর্ব সময়’’ অর্থ জাতীয় সংসদের সাধারণ নির্বাচন কিংবা কোন শূন্য আসনে নির্বাচনের ক্ষেত্রে কমিশন কর্তৃক নির্বাচনি তফসিল ঘোষণার দিন হইতে নির্বাচনের ফলাফল সরকারি গেজেটে প্রকাশের তারিখ পর্যন্ত সময়কাল;
 
Now, let us look at the enquiry report of the Electoral Enquiry Committee dated 03.01.2014 (annexure B1 to both the writ petitions).
 
It is evident from the Column 4 of the said report that the complaint was lodged against Mr. Sheikh Afil-Uddin, not against Mr. Monirul Islam and Column 5 of the report contains the allegation and the Column 6 in the decision of the Electoral Enquiry Committee, which records in the following comments “আনীত অভিযোগ আকারে আচরণ বিধি লঙ্গনের সত্যতা পাওয়া গেছে’’ and in Column 7 the recommendation of the Committee goes to say as follows; সুপারিশ: শার্সা উপজেলার সীমানা সংলগ্ন জিকরগাছা ও চৌগাছা উপজেলার ভোট কেন্দ্রগুলিতে প্রশাসন ও পুলিশের এতদবিষয়ে নিবীড় পর্যবেক্ষণ ও তদারকি প্রয়োজন।
 
In order to relate the above facts with the relevant provisions of RPO, we may look at article 91A of the RPO, which runs as follows:
 
Article 91A (1) 194 [***] The Commission shall establish a Committee to ensure the prevention and control of pre-poll irregularities, to be known as the Electoral Enquiry Committee, hereinafter referred to as “the Committee.”
(2) 195 [***] The Committee shall consist of such number of persons as may be determined by the Commission from amongst the Judicial Officers.  
(3) 196 [***] The Committee shall, on the basis of information received by it, or complaints made to it, or on its own initiative, inquire into any matter or situation which in its view may constitute an offence under this order, or 197 [ any pre-poll irregularity including any situation or matter which, in its opinion, may involve], by any person whosoever, as act or omission constituting intimidation, obstruction, coercion, or the publication of false information, or any other act or omission intended to or actually resulting in the obstruction or frustration of the preparation for, or the conduct of, free and fair election in accordance with this Order and the rules.
(4) 198 [***]  In performing its function under this order, and subject to the direction of the Commission, the Committee may conduct any inquiry as it deems necessary before the election is over.
(5) 199 [***] The Committee, in conducting such inquiry, shall have the right to:
  • require, in writing, any person to appear before it and give evidence under oath or affirmation to it; and
  • require, in writing, any person to produce any documents or objects under his control to it.
200[***] (6) After conducting an inquiry, the Committee shall inform the commission within three days of the inquiry and may make a recommendation which may include-
(a) proposals for any order, directive or instruction to be made by the Commission to any person responsible for any act to stop such act forthwith; or
(b) in the case of any omission, to perform any specific act, including, if necessary, the appropriate correction of any false information.]
(I) proposals for any order, directive or instruction to be made by the Commission to any person responsible for any act, to stop such act forthwith, or, in the case of any  omission, to perform any act specified, including, if necessary, the appropriate correction of any false information:
Provided that in the event of non-compliance, if any of the above order, instructions as the case may be, the Commission may impose fine not exceeding 200 [twenty thousand taka].]
200 [(6a) After receiving the recommendation under clause (6), the Commission may issue necessary order or instruction to the concerned person, or registered political party to implement the recommendation.
(6b)Where, any order or instruction is issued under clause (6a), the concerned person or registered political party shall carry out the same instantly.
(6c) In the event of non-compliance of an order or instruction made under clause (6a), the Commission may impose a fine not exceeding take one lakh but not less than taka twenty thousand upon the concerned person or registered political party, and by a notification published in the official Gazette, cancel the candidature of the candidate.
[(7) The Commission shall, for the purpose of clause (1), specify the acts and omissions which shall be deemed to be pre-poll irregularities and shall publish them in the official Gazette or in such other manner as it deems fit.
(80 Any proceeding before the Committee shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Penal Code (Act XLV of 1860). 
(9) The Committee shall have the powers of a civil Court, while trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of enforcing the attendance of any person and examining him on oath or affirmation and compelling the production of documents and material objects. ]
 
From the concurrent reading of the Clauses of article 91A, particularly Clauses 2, 6, 6a, 6b, & 6c it appears that the Electoral Enquiry Committee is empowered to inquire into any offence under the RPO and upon carrying out the inquiry it can only make recommendation for Election Commission but the Committee does not possess any power to impose any fine or penalise any one. The Election Commission, then, can ask any person to implement the Committee’s recommendation.
 
Here, in these cases the Committee’s recommendation for Election Commission was to remain alert on the poll date on 05.01.2014 so that any pre-poll irregularity may be prevented and it is the admitted position that no occurrence took place on the said poll date. From the Electoral Enquiry Committee’s report another two fold situation surfaces. First, there is nothing against Mr. Monirul Islam in the report and, thus, whether the matter should be taken to have already been disposed of with the peaceful completion of the poll in all the centres of Jessore-2 constituency. The second scenario is whether Mr. Sheikh Afil-Uddin’s offence should be tried independent of his own election matter given that he did not commit any offence in connection with the election of Jessore-1 constituency i.e. his own seat’s election. In other words, committing an offence by him may be seen or considered as if it has been committed by a person with the name of Mr. Sheikh Afil Uddin, who does not have any nexus with the election of Jessore-1 constituency after 13.12.2013, and if the offence of Mr. Sheikh Afil Uddin is considered to have been committed by one ordinary person such as Mr. Sheigh Afil Uddin or X or Y, then the consequence is that he will be imprisoned for 3 years to 7 years without affecting the election result of the said constituency no. Jessore-1 given that the offence is not connected with the election of constituency no. Jessore-1. However, Mr. Sheikh Afil Uddin or X or Y, due to his post-election conviction, may be disqualified to continue to function as an MP.
 
Now, a pertinent question comes up for consideration as to whether the power of investigation invested in the Election Commission under article 91E of the RPO can be exercised by the Election Commission after the Electoral Enquiry Committee conducted its inquiry under article 91A of the RPO having adjudicated upon the pre-poll irregularity by making the recommendation recorded hereinbefore. We, again, refrain from examining the said issue of these cases as we have decided not to make any observations or order as to the actions taken or decisions made by the Election Commission in these cases except commenting that incorporation of the definition of ‘নির্বাচন পূর্ব-সময়’ in the RPO could strengthen the position of the Election Commission in dealing with these types of incidents.
 
Before parting with the judgment, our task may remain incomplete if we do not deal with the submissions made by Mr. Siddique that there is a Constitutional obligation under Article 72(2) and 148 of our Constitution for the petitioners to sit in the parliament within 30 (thirty days) from 08.01.2014. Having heard his submissions with rapt attention and, thereafter, perusing the said Constitutional Provisions, we find it difficult to comprehend his submissions inasmuch as 3 (three) day time limitation for taking oath comes in operation only when the name of an MP is published in the Gazette Notification and, thus, the issue of sitting in the parliament within thirty days appears to be completely irrelevant for these petitioners.
 
Since our above exercise was aimed at briefly analyzing the relevant provisions of the Constitution and RPO, which are apparently applicable in disposal of the complaints pending before the Election Commission, therefore, if the Election Commission finds the discussions of the facts alongside the relevant provisions of the RPO as made hereinbefore to be conducive for the disposal of the complaints pending before them, they are at liberty to take the benefits of the discussions and observations made by this Court here in this judgment.
 
So, from the above threadbare discussions this Court is left with no option but to hold that the Rules are liable to be disposed of with a direction upon the Election Commission (respondent no. 1) to adjudicate upon the said complaints brought against the petitioners, which are now pending before Election Commission, at its earliest convenience.
 
Accordingly, we direct the Election Commission (respondent no. 1) to dispose of the complaints filed by respondent no. 2 with regard to the elections of the constituencies of Jessore-1 and Jessore-2 within 2 (two) weeks from the date of receiving this judgment without fail.
 
With the aforesaid observations and directions these Rules are disposed of without any order as to costs.

Ed.