This edition of ‘From the Court Corridor’ curates the notable pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh in December 2020.
Reinterpreting the tenure of life sentence
In 2017 the AD, in Ataur Mridha @ Ataur v The State (Criminal Appeal Nos 15–16 of 2010), held, ‘Life imprisonment within the meaning of section 53 read with section 45 of the Penal Code (PC) means imprisonment for rest of the life of the convict.’ It meant that any convict sentenced to life imprisonment would have to serve their sentence for the rest of their natural life. Upon review, the AD harmoniously interpreted PC sections 45, 53, 55 and 57 and the Code of Criminal Procedure (CrPC) section 35A and held that life imprisonment will be deemed to be rigorous imprisonment for 30 years. It also held that while awarding sentences, if a court or tribunal, or the International Crimes Tribunal constituted under the International Crimes Tribunal Act, 1973, sentences someone to imprisonment till their natural death, they will not receive any remission under CrPC section 35A. Hence, the AD reverted to its decision in Rokia Begum @ Rokeya Begum v The State (see (2015) 4 SCOB (AD) 20).
The appeal verdict was based on a plain textual reading of the relevant provisions. It failed to take into account the progress that has taken place worldwide of late. Globally, penal policies now have a reformative approach. Hence, our criminal justice system should move away from awarding any punishment that deprives the accused of the opportunity of reforming and reintegrating themselves back into society. The review verdict seems to correct the erroneous approach the court had taken earlier.
However, the AD may have been wary that the tenure of life imprisonment can be lenient in certain cases. It had expressed similar concerns in Rokiya Begum, but refrained from elaborating on it. Hence, this verdict seems to create two categories of sentences – life imprisonment and imprisonment till death. The creation of this new category of punishment – imprisonment till death – leaves a few unanswered questions which the AD will hopefully answer in the full text of the verdict.
Ordering compensation for wrongful confinement of one Md Arman
In 2016 the police wrongfully detained one Md. Arman, owing to his father’s name being similar to the father’s name of one Shahabuddin, a convict in a narcotics case. When the media reported the incident in 2019 Law and Life Foundation filed a habeas corpus writ petition before the HCD asking for his release. The petitioner argued that this was a violation of Arman’s fundamental rights under articles 27, 31, 32, 33 and 36 of the constitution. On 23 April 2019 the HCD issued a rule asking the respondents to explain why it should not order Arman’s release and direct them to compensate him for his wrongful confinement.
On 31 December the HCD made the rule absolute and declared Arman’s detention illegal and violative of his fundamental rights. It directed the inspector general of Police (IGP) to pay Arman BDT 20 lacs as compensation within 30 working days of receiving the verdict’s copy. The court also ordered the withdrawal of the concerned policemen, who were involved in this incident from the Pallabi police station, and to hold an ‘impartial and effective’ departmental enquiry against them. It asked the deputy inspector general of Police, Police Bureau of Investigation to submit the full enquiry report on 11 April 2021.
It is yet another flagrant violation of the fundamental rights of a citizen by the police. The HCD, while reasoning its order for compensation, correctly relied on numerous Indian and Bangladeshi precedents submitted by the petitioners in this regard. However, on appeal, the AD’s chamber judge stayed the compensation order. One expects that upon hearing the parties, the AD will ultimately uphold the compensation order which is ‘perhaps the only effective remedy to apply balm to the wounds’ of Arman and his family members.
Holding the government ineligible to withdraw or recommend withdrawal of corruption cases
In 2011 the Ministry of Home Affairs, by exercising the power under CrPC section 494, applied to the divisional special judge, Sylhet, to withdraw the Special Case No.12 of 2009. The concerned divisional judge approved the said application and allowed the withdrawal in 2012. Being impugned by the court’s order, the Anti-Corruption Commission (ACC), in 2014, filed a criminal revision petition to the HCD, citing section 10 (1A) of the Criminal Law Amendment Act, 1958 (the 1958 Act) read with CrPC sections 439 and 435. Upon hearing, the HCD decided in favor of the ACC.
The HCD reasoned in its verdict that the government cannot exercise the power under CrPC section 494 for any scheduled offences under the Anti-Corruption Commission Act, 2004 (the ACC Act) that are triable by special judges under section 5 and the Schedule of the 1958 Act. It endorsed the fact that section 2A of the ACC Act (a special law) overrides the general power under CrPC section 494. Thus, the HCD held that only the ACC can file for withdrawal of such cases under section 10 (4) of the 1958 Act. However, it noted that the government may request or express its wish to the ACC to withdraw any case, but the ACC is free to decide whether to entertain such a request. The court lastly ordered the concerned special divisional judge to proceed with hearing the case.
The verdict has once again established that the ACC is an independent statutory body. Various media outlets have reported that ever since coming to power the current government has recommended the withdrawal of over 7,000 criminal cases, including many corruption cases, filed during the rule of the previous regimes. However, as this verdict highlighted and reiterated, the laws allow only the ACC to withdraw corruption cases. The government should, therefore, refrain from violating these provisions and not interfere in the ACC’s activities.
Directing to train investigation officers on the provisions regarding the investigation of offences under the Digital Security Act
After granting bail to photojournalist Shafiqul Islam Kajol under the Digital Security Act, 2018 (DSA) the HCD expressed its grave dissatisfaction over the fact that the investigation officer (IO) of the case did not follow the provisions on the investigation of offences under DSA. Section 40 stipulates the time limit for the investigation of offences under DSA. It states that the IO will finish an investigation within 60 days. If they fail to do so, upon approval from their controlling officer, they may extend the investigation period for 15 more days. However, when the IO is unable to finish the investigation even after 75 days, they will inform the matter to the cyber tribunal, along with the reasons for their inability in writing, to seek an extension. If the tribunal permits, the IO will complete the investigation within the next 30 days.
A member of parliament filed the first information report of the case against Kajol on 9 March. However, as the HCD noted, the IO has not even submitted the investigation report to the tribunal, as mandated by CrPC section 173, till date. The HCD observed that the IO failed to seek the tribunal’s permission when the time limit of 75 days expired under DSA section 40 (1) (a) and (b). Thus, while granting bail to Kajol, the HCD directed the IGP to give necessary orders and take measures to train up IOs on the provisions relating to the investigation of offences under DSA. The HCD also observed that Kajol can challenge the IO’s authority to continue the investigation without seeking the tribunal’s permission, as per the law.
This is a welcoming verdict since the authority has been using the draconian provisions of DSA to stifle free speech and criticism. Many a time, the IOs do not finish the investigation within the stipulated period. They even disregard the provision of section 40 (1) (c) to seek the tribunal’s permission to extend the investigation period beyond 75 days. Meanwhile, the accused languish in custody – a total violation of their fundamental rights. Hence, the HCD’s verdict is the first step towards curbing this illegal practice. The IGP should take measures to train up all the IOs accordingly to comply with the HCD’s verdict and ensure that the police respect and abide by the provisions of DSA.