From the Court Corridor: October Edition

This edition of ‘From the Court Corridor’ curates the notable pronouncements of the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in October. 

Releasing four children arrested in rape case on bail 

On 8 October Somoy TV reported that police arrested four children aged 10–11 years for raping a 6-years old girl. It reported that when the police produced them before the concerned senior judicial magistrate (SJM) he rejected their bail petition and ordered the police to send them to the Jashore Juvenile Detention Centre. Following the broadcasting of the news on TV an HCD bench sat on that very night. The HCD issued a suo motu order to the Nari O Shishu Nirjatan Daman Tribunal, Barishal, to release the children from the correction centre instantly on bail and hand them over to their parents that night. The tribunal complied with the order immediately after receiving it via email. The officer-in-charge (OC), Bakerganj police station and the concerned SJM were both asked to appear before the HCD on 11 October. The HCD also asked the registrar, Barishal Medical College Hospital to submit the medical report of the alleged rape victim on the same day.

On 11 October the HCD stayed all proceedings in the case against the four children. It ordered the police to ensure their safety in their parents’ custody. The court also came down heavily on the concerned SJM, who later tendered an unconditional apology to the court, for sending the children to the detention centre. The court then issued a rule asking him to reply to why it should not take action against him for his conduct. It set 22 October as the next date of hearing.

The incident reveals how the subordinate judiciary is often oblivious to the actions of the police and approves them without proper scrutiny. The promptness with which the HCD handled the issue is commendable. Even when children are taken into custody for their alleged involvement in crimes, judicial officers must follow the procedures outlined in section 30 of the Children Act, 2013 (the 2013 Act) before passing any orders to ensure procedural fairness and justice. 

Directing to stop out-of-court salish (arbitration) to settle rape cases

On 13 October SC lawyer Yeadia Zaman sent a legal notice to the concerned government authorities to take necessary steps to prevent out-of-court settlements, popularly known as salish (arbitration), in rape cases. As they failed to respond to the notice, Ain O Salish Kendra (ASK) filed a writ petition to the HCD to issue necessary directives in this matter. The petitioner submitted that rape, a non-compoundable offence, cannot be settled through out-of-court arbitrations. They requested the court to ask the concerned authorities to inform how many rape cases were filed in the police stations and how many of such cases went for trial in the last ten years throughout Bangladesh. ASK further asked the court to issue directives to the concerned authorities to ensure that they abide by the SC’s previous directives in three writ petitions filed in 2016 and 2019 to curb rape. ASK lastly asked the court to direct the authorities to complete rape trials within 180 days and implement closed-door, in-camera trials as per section 20 of the Women and Children Repression Prevention Act, 2000 (the 2000 Act).      

After hearing the HCD on 21 October issued a rule asking the respondents to explain within four weeks why it should not declare holding such out-of-court salish (arbitration) to settle rape cases a criminal offence. It further directed law enforcement officials to take adequate measures to stop out-of-court arbitrations from settling rape cases. Lastly, the court directed the concerned government authorities to file a report within three months on the number of rape cases sent to the concerned tribunals for trial in the last five years. The court said that the report must include the measures taken by the concerned authorities to ensure the completion of such trials within 180 days as mandated by the 2000 Act.  

This writ petition addresses a glaring loophole in the system – out-of-court settlements in rape cases – that has been a practice for quite a while in Bangladesh. The government authorities must comply with the HCD’s orders and enable the law enforcement agencies to take adequate steps to stop this illegal practice. 

Ordering only joint district and sessions judges to hear cheque dishonour cases

Earlier one Ziaur Rahman from Chapainawabganj filed four separate writ petitions to the HCD questioning the legality of the joint district and sessions judge’s court proceedings against him in three cheque dishonour cases under section 138 of the Negotiable Instruments (NI) Act, 1881. After hearing the writ petitions together the HCD ordered that from now on only joint district and sessions judges will hear cheque dishonour cases. The HCD asked the registrar general of the SC to inform all subordinate courts to follow this directive within 15 days from 18 October. Previously, joint district and sessions judges, additional district and sessions judges and district and sessions judges used to hear cheque dishonour cases. Thus, the forum of appeal was different for different litigants – the ones who filed cases to the joint district and sessions judge’s court had to appeal to the district and sessions judge’s court, whereas the ones who filed cases to the additional district and sessions judge’s court or district and sessions judge’s court had to appeal to the HCD. Following the verdict one can file appeals from such trials only to the district and sessions judge’s court, not the HCD.

This verdict is a welcoming sign as it reduces case backlogs in both the district and sessions courts and the HCD. It also ends a discriminatory practice where litigants of the same category had to incur extra costs just because the additional district and sessions judges or the district and sessions judges disposed of their cheque dishonour cases. 

Seeking report on the standard of facilities in Jashore Juvenile Correction Centre

On 13 August three teenage inmates in the Jashore Juvenile Correction Centre allegedly took part in a scuffle with one of its guards. Afterward, the staff and senior inmates decided to punish the boys by beating them. However, during the course of punishment, they allegedly beat the three boys to death. Being concerned, Bangladesh National Woman Lawyers’ Association (BNWLA) filed a writ petition to the HCD. The petitioner asked for the HCD’s permission to visit the correction centre and inspect whether it was maintaining the minimum standards of care mandated by the 2013 Act for child development centres (CDCs). Upon hearing, the HCD issued a rule against the respondents asking them to reply to why they should not allow BNWLA to visit the correction centre to inspect its standard of facilities for the inmates. The HCD also asked the authorities of the correction center to file a report on the standard of its facilities for the inmates within three months from 21 October.    

The Jashore incident is a stark reminder of the poor facilities and constant abuse that our juveniles experience in CDCs. The HCD, in an earlier writ petition, issued a rule nisi for compensation worth BDT 50 lacs to be paid to the three victims’ families. However, without structural reforms in the CDCs to ensure minimum standards of care for all juvenile inmates, any other reform measures will fail to address the root of the problems. Hence, BNWLA’s initiative to inspect the Jashore centre, something they can do under section 64 of the 2013 Act, should be approved by the concerned authorities for the betterment of facilities in the CDCs and the overall improvement in our juvenile justice system.

Issuing directives to stop fake arrest warrants 

On 10 December 2019 the wife of Gonoshasthaya Kendra’s Programme Officer, Awlad Hossain, filed a writ petition to the HCD challenging the legality of the arrest warrants issued against her husband. She submitted that the police had issued fake arrest warrants against Awlad and produced him before different courts across Bangladesh. She asked the HCD to direct the police to produce Awlad before the court and prove that they were not detaining him illegally. The HCD then issued a rule asking the respondents to explain why the arrest warrants would not be declared illegal. On 14 October 2020 the HCD laid out seven directives to the concerned authorities to stop the issuance of fake arrest warrants. 

The directives can be summarised as follows:

1. The individual preparing the arrest warrant must provide all the necessary information in the proper form as mandated by section 75 of the Code of Criminal Procedure, 1898. 
2. After preparing the warrant the individual preparing it should log it into the proper entry book before the messenger delivers it to the office of the police superintendent or the concerned police station within the same local jurisdiction where they will execute the warrant. The concerned police will log the receipt of the warrant in the proper entry book and sign it. The court also suggested taking the help of technology gradually to send and execute arrest warrants.
3. For executing warrants outside the local jurisdiction of the district where it is prepared, the authority issuing the warrant will seal it and send it to the concerned office of the police superintendent of that district by stamping the office’s seal on the warrant. 
4. The officer-in-charge in the concerned superintendent’s office will open the sealed envelope to verify the arrest warrant and take necessary steps for its execution. However, if he has any suspicion about the warrant, he should verify it by contacting the individual who prepared the warrant via the number provided. Afterward, he should take appropriate steps to execute the warrant. 
5. The above directive also applies if the executing officer has any doubt while re-examining the arrest warrant before executing it.
6. After arresting the accused the concerned policemen must present them before the nearest magistrate’s/judge’s court within the stipulated time along with the arrest warrant. If the court does not grant the accused bail, it will send the accused to jail custody. The court will immediately forward a copy of its order along with the original warrant and supplementary records, wherever required, to the magistrate’s/judge’s court that issued the warrant.             
7. The concerned jail superintendent or any other officer-in-charge, who receives the accused in jail, shall immediately inform the magistrate’s/judge’s court issuing the arrest warrant that the arrestee being accused in a police station case or being named in a court case has been arrested under the said warrant. If the concerned jail superintendent receives any new arrest warrant against the accused, they shall execute the warrant after confirming it from the concerned court that issued the warrant. 

After Bangladesh v BLAST ((2016) 8 SCOB (AD) 1), Saifuzzaman v State ((2004) 56 DLR 324) and BLAST v Bangladesh ((2003) 55 DLR 363), this is another landmark pronouncement by our apex court to prevent unlawful arrest and illegal detention of our citizens. The HCD also released Awlad after the order. It asked to send a copy of the order to all the offices of the concerned government authorities to implement the directives.