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March 28, 2004

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Section 6 of 'Druto Bichar Ain'
Equal protection of law is not violated

High Court Division (Special Original Jurisdiction)
The Supreme Court of Bangladesh
Muhibur Rahman Manik and otherrs .... Petitioners
Bangladesh and others ..... Respondent
Before Mr. Justice Md Hamudul Haque and Justice Zinnat Ara
Date of judgement: May 21st, 2003

Md Hamidul Haque J: These Rules were issued calling upon the respondents to show cause as to why section 6 of Druto Bichar Tribunal Ain, (Act No. 28 of 2002) and the Notification vide SRO No. 38-Law/2003 so far it relates to the petitioners concerned should not be declared to be unconstitutional and void. And also why the transfer of the cases of the petitioners to the Druto Bichar Tribunal should not be declared to have been done without lawful authority and is of no legal effect

In these Rules facts are not very much relevant. The petitioners of these writ petitions are accused in some cases. Their cases were transferred from the trial Courts to Druto Bichar Tribunal which were set up in view of the provisions of section 4 of the above Ain.

Mr M Amriul Islam, the learned Advocate appeared on behalf of the petitioners of WP Nos. 2120 and 2189 of 2003 and Mr Abdul Baset Majumder, the learned Advocate appeared on behalf of the petitioners of WP No. 1978 of 2003. Their submissions are almost the same. However, let us start with the submissions of Mr Amirul Islam. The gist of his submission is that section 6 of the above Ain does not provide any principle or guideline for exercise of the power given to the Government under that section. And as such, in the absence of such guideline or any objective criterion, there is ample scope of discrimination between same classes of people and also a scope of exercising the power arbitrarily in transferring cases to Druto Bichar Tribunal. He has given much emphasis on the fact that the section confers unfettered power upon the Government to "pick and choose" any accused of a case for harassment and political victimisation and this power violates the equality clause as guaranteed under Article 27 of the Constitution.

Next, Mr Islam has argued that transfer of the cases of the present petitioners to the Tribunal is malafide. He referred to ground No. III of Writ Petition No. 2120/03 and has submitted that the petitioner was a lawmaker in the Awami League Government and, as such, his case was transferred at the behest of the interested quarters only to victimise and harass him.

The last submission of Mr. Amirul Islam is that right of transferring a case from one Court to another Court cannot be exercised by the Government or any executive authority. He has pointed out that such right has been given to the higher courts under different laws now in force. Next, he has given emphasis on the fact that it is the Government who chooses the cases, the Courts and the Judges. So, according to him, this unfettered power as given to the Government not only is violative of fundamental rights but it also amounts to interference with the connection of independence of judiciary.

We have perused the different sections of the Ain. Section 5 provides that only those cases which are transferred by Gazette Notification to a Tribunal are to be tried by the Tribunal. And section 6 provides that cases relating to offences of murder, rape, firearms, explosive substances and drugs may be transferred by the Government in public interest by making a notification in the Gazette to a Tribunal from the Court of Sessions or Special Court or from a Court of Magistrate, as the case may be. So, from section 6 we find that a case which relates to the offences as mentioned in the section and pending for trial in the Courts as mentioned in the section may be transferred by the Government to a tribunal.

Let us now consider the question whether petitioners will be treated differently from those accused of the same footing who will be tried by the Courts from which the cases of the petitioners were transferred to the Tribunal. If we find that there are major departures from the procedure of trial followed in those Courts, then the question of differential treatment will arise. We made a query to Mr Islam to point out what departures he could find. Mr Islam has pointed out three departures. With reference to section 9, he has pointed out that as regards the trial of the cases that section provides that the procedure as laid down in Chapter XX of the Code shall be followed whereas the same procedure relates to trial by Magistrates. He has also pointed out that sub-section (2) of section 9 provides that if the punishment does not exceed imprisonment for more than 7 years, the accused may be tried summarily under the provisions of Chapter XXII of the Code. Next, he has pointed out that photographs taken at the time of the occurrence or the recorded conversation have been made admissible in evidence under section 16 of the Ain.

We have perused the whole Ain and we have found that even the departures as pointed out by Mr Islam have not in any way affected the rights of the present petitioners. It is true that in subsection (1) of section 9, Chapter XX of the Code has been mentioned but the reference of Chapter XX cannot be considered as a departure affecting the rights of the petitioners. Moreover, we have noticed that in section 7 of the Ain it has been clearly mentioned that the Tribunal shall be deemed to be a Court of Session. When Tribunal shall be deemed to be a Court of Session it will act as a Court of Sessions. Section 17 clearly provides that the provisions of the Code of Criminal Procedure shall apply in respect of trial of a case in the Tribunal so far those are not inconsistent with any provisions of the Ain. The learned Advocate for the petitioners could not show any provision of the Ain which has in any way curtailed the right of the petitioners to get fair trial. Even we find from sub-section (3) of section 9 that the same procedure of granting bail which is applicable in the court from which the cases are transferred shall continue to apply in the Tribunal if an application for bail is made before that Tribunal. So, we find that no stringent provision has been incorporated in the new law even regarding bail.

As regards section 16, we may say that the section only empowers that Tribunal to admit such evidence. In the Evidence Act or in the Code of Criminal Procedure, there is no bar to admission of such evidence. Moreover, from the proviso to section 16, it is clear that such evidence cannot be the basis for conviction.

So, on perusal of the Ain itself we find that an accused whose case is transferred to the Tribunal will get similar opportunities to defend himself like an accused facing trial in the other Courts from where the cases were transferred to the Tribunal. However, we find that there is a departure in respect of time-frame as given in the Ain from the time-frame given in the Code. Under section 339 of the Code, a Magistrate is required to conclude the trial of the case within 120 days and a Sessions Judge within 360 days. Here, in this Ain, the Tribunal is to conclude the trial within 135 days, this is evident from section 10 of the Act. So, the only difference we find is that in the Ain time limit is reduced to 135 days. We find no reason how this reduction of the time limit will affect the petitioners when the other conditions relating to trial remains the same. Here comes the application of Article 35 of our Constitution. The learned Advocate of both the sides has submitted that there is no Article in the Indian Constitution, which is similar to clause (3) of Article 35 of our Constitution. Clause (3) of Article 35 clearly provides that a person accused of a criminal offence shall have the right to a speedy trial. This aspect of a constitutional guarantee of getting speedy trial was not discussed in any of the cases cited by Mr Amirul Islam.

When our Constitution itself provides that a person accused of an offence shall have a right to get a speedy trial, it is the duty of the Parliament to enact the law to ensure such right. The learned Attorney-General has explained that the instant Ain was enacted with that end in view. We have no doubt in our mind that the principles laid down in the cited cases could be applied in the instant cases before us if it could be found that accused persons of the same footing or standing are being tried in separate forums under separate procedures of trial. Obviously, in that case, that would have been violation of equality clause of Article 27. We have found that an accused tried by the Tribunal and an accused tried by the other Courts as mentioned in the Ain are being tried under the same procedure. Moreover, we find that the enactment was made in consonance with the provisions of the Constitution itself. Someone has said long ago that "justice is like a train that's nearly always late." Now it is a universal demand that such bad name should be erased and we find that the new Ain is one step towards that goal.

Mr Islam has given much stress on the fact that there is no guideline in the Ain itself to transfer a case and, as such, the Government has the opportunity to transfer cases on "pick and choose" basis. It is not fully true that there is no guideline in section 6 of the Ain. We find that at least there are three guidelines -- first, only those cases which are pending for trial can be transferred, because in the section the word has been used. Next, guideline is that only cases which involve five kinds of and thirdly, such transfer can be made only in public interest. In Anwar Ali's case, Hon'ble Judges took exception as to the constitutionality of the provisions of section 5 of the West Bengal Special Courts Act mainly on the ground that class or classes of offences are not mentioned in the Act. Here, in section 6 of the Ain, class or classes of the offences are clearly mentioned.

The last argument of Mr Islam was that the Government chooses the cases, Tribunals and also the Judges and in this way the Government has unfettered power to influence criminal justice and to cause harassment to political rivals. Perhaps Mr Islam was not fully informed of the fact as to the appointment of Judges in those Tribunals. The Judges were appointed in consultation with the Supreme Court vide Notification No 624-Bichar-3/1A-2/2002 dated 13-11-02. So, it is not true that judges have been appointed by the Government according to its choice.

As regards the argument of accountability of the Judges we find that this is also not correct. Section 15 provides that a Tribunal is to send a report to the Supreme Court if it cannot conclude trial within he specified time. So, the Tribunal is accountable to the Supreme Court not to the Government. It is provided that only a copy of the report is to be forwarded to the Government. However, sub-section (2) of section 15 provides that the Public Prosecutor and the concerned police officers will be required to submit report to the Government and in that case, copy shall be forwarded to the Supreme Court. Sub-section (3) provides that after perusal of the reports, the authority concerned may take necessary action against the person responsible for not concluding the trial within the specified time. In case of a Judge, the concerned authority, obviously, is the Supreme Court, not the Government.

In view of our discussion made above, we find that provision of section 6 of the Ain do not in any way infringe the right of getting equal protection of law.

In the result, the Rules are discharged without any order as to cost. The orders of stay granted earlier are vacated.

AF Hasan Ariff, Attorney General with Abdur Razzaque, Additional Attorney-General, Giasuddin Mithu, Assistant Attorney-General, Zaman Kahtar, Assistant Attorney-General and Kamrunnessa, Assistant Attorney-General for the Respondents. Barrister Amirul Islalm and Advocate Basit Mojumder for the Appellants.


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