This edition of ‘From the Court Corridor’ curates the notable pronouncements of the Appellate Division (AD) and the High Court Division (HCD) of the Supreme Court (SC) of Bangladesh in August 2023.

No order directing surrender of the accused before the lower Court in case of anticipatory bail

On 27 August 2023, a four-member bench of AD headed by Justice Obaidul Hassan opined in a hearing that the HCD cannot direct any accused in a criminal case to surrender before the lower Court, nor can it order the police not to arrest him/her. The other members of the bench were Justice M Enayetur Rahim, Justice Md Ashfaqul Islam and Justice Md Abu Zafor Siddique.

Previously, on 8 August in a case involving the fall of a six-year-old girl from the seventh floor of an apartment, the HCD directed the accused, Executive Editor of the Daily Star, Ashfaqul Haque, and his wife Tania Khondoker to surrender before the CMM (Chief Metropolitan Magistrate) court of Dhaka within six weeks. In the same order, the HCD directed the police not to arrest the accused persons within the said period. 

The State filed a petition of leave to appeal to the AD against such order, and hence, in the hearing, the present bench of AD scrapped the previous order of the HCD directing the accused to surrender before the lower Court. Instead, the AD directed the accused to surrender before the CMM court with a ‘fresh bail petition’ while asking the CMM court to consider the petition on the merits of the case. Nevertheless, the advocate for the defendant counter-argued that the precedent based on which this prohibition on HCD is given, comes from a murder case which has nothing to do with the circumstances of the present case.

The bail prayed for before the arrest of the accused is known as anticipatory bail. Despite there being no specific rule regarding anticipatory bail, such is usually granted by an ‘explanation’ of section 497 of CrPC (Code of Criminal Procedure). However, anticipatory bail is an exceptional sort of bail since only HCD holds the exclusive jurisdiction to grant it. To get anticipatory bail, the accused has to show that the state wants to arrest him/her with a malicious intent which can cause irreparable damage to his reputation and freedom. Thus, it has a link to the constitutional guarantee of the right to life and personal liberty under Article 32. The case will have a considerable impact as it attempts to protect the freedom of the accused who may be otherwise arrested. However, the current ruling scraps away the power of the HCD to order the police not to arrest him/her, which frustrates the object of anticipatory bail.

The HCD directs the authorities to stop encroachment on Arial Beel

On 16 August 2023, the HCD bench consisting of Justice JBM Hassan and Justice Razik-Al-Jalil, issued a rule asking the authorities to explain why their inaction to protect Arial Beel should not be declared illegal. 

Earlier on 14 August, Human Rights and Peace for Bangladesh (HRPB), a rights-based organization, filed a PIL (Public Interest Litigation) in the HCD seeking ‘its directives on the authorities concerned to save Arial Beel from encroachments and illegal earth filling and constructions of structures there’. The present rule is followed from the said writ petition.

The HCD has ordered the DC (Deputy Commissioner) and SP (Superintendent of Police) of Munshiganj, the UNO (Upazila Nirbahi Officer) of Srinagar and Director (Enforcement) of the Department of Environment (DoE) to take necessary steps in this regard and submit compliance reports in three months, along with satellite maps of Arial Beel, starting from 2010 to 2022. Besides, it has also directed them to issue show cause notices to the land encroachers, asking why they should not be ordered to remove the structures already constructed at the water body and to remove the soil which has been used to fill it.

Under the Natural Water Reservoir Conservation Act, 2000 and the Bangladesh Environment Conservation Act, 1995, earth filling, construction of structures and encroachment at waterbodies are punishable offences. Nonetheless, several real estate developers have illegally occupied several parts of the Beel and filled it up with sand.

PIL was primarily initiated by Dr Mohiuddin Farooque back in the 1990s when in Dr Mohiuddin Farooque v Bangladesh (1995), our judiciary facilitated the emergence of public interest litigation by liberally interpreting the phrase ‘person aggrieved.’ The court construed it to include individuals with a significant interest in the subject matter, even if they were not directly impacted by the issue. From the FAP 20 case to the contemporary River Turag case, PIL has been an excellent mechanism for protecting the environment and natural resources from illegal encroachment. The present writ petition can be said to be a follow-up of such environmental suits.

HCD stays the trial proceeding against an engineer under DSA.

On 27 May 2021, the chief coordinator of S Alam Group’s Banshkhali project, filed a case under the Digital Security Act (DSA) against Shah Newaz, an engineer in occupation, after he criticized the Gandamara coal power plant as ‘environment-destructing’ on Facebook, stating in the case that the accused was posing a security threat to the power plant by instigating locals and spreading propaganda and misinformation. On 17 May 2022, the Chattogram Cyber Tribunal framed charges against the accused. Under this context, the accused filed a petition to the HCD.

On 9 August 2023, the HCD stayed the proceedings against the accused and issued a rule asking the state to explain in four weeks why the trial proceedings of the case against Shah Newaz should not be set aside. An HCD bench consisting of Justice SM Kuddus Zaman and Justice Shahed Nuruddin ordered this rule. The HCD said that the stay will be effective until the disposal of the rule. The Deputy Attorney General, however, said that the State will move the AD challenging the present rule of the HCD. The DSA has been from the beginning used to suppress the voices online that are critical of the government, but barely any significant judicial move has been made in this regard. So, it is quite recently the HCD has made a significant move to stop harassment caused by it. The stay issued signifies the change in the ‘hands-off’ position of the HCD to a more judicially active one.

The author was assisted by Khalid Khan, currently serving as a Junior Editor at Dhaka Law Review.

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