May 25, 2013 | 06:41 PM (BD Time)
25 May, 2013 Saturday
Procedure for trial of case(s) if returned to the Court of Session
Md Imman Ali and Sheikh Hassan Arif, JJ
Bangladks and others
The Intention of the Legislature is that cases of serious nature as mentioned in the Druta Bichar Tribunal Act, 2002, are to be disposed of expeditiously.
It is the mandate of the law that once the case is returned back to the Court from which it was originally transferred to the Druta Bichar Tribunal, that Court, which in this case is the Court of Metropolitan Sessions Judge, will Continue the trial from where the trial before the tribunal left off. There is no doubt that the proviso to section 10(5) lays down the procedure as to how the trial before the Court of Session is to take place. i.e. the trial is to be held continuously without any break and without an: adjournment unless there are unavoidable. circumstances. (Para--10)
We note from the record that the trial was delayed to some extent at least due to the fact that the prisoner was kept in Kashimpur Jail and could not be brought to Dhaka Central Jail. In the dates fixed for hearing. We command the order of the learned Tribunal Judge transferring the prisoner from Kashigpur Jail to Dhaka Central Jail. In our view that was proper in the facts and circumstances of the case, and unless he has been already transferred back to Dhaka Central Jail, he should immediately be transferred to Dhaka Central Jail for proper progress of the trial. (Para-14)
Mr. Anisul Huq, Senior advocate with Mr. Md. Nuro Nabi, Advocate For the petitioner. Mr. Md. Motaher Hossain Deputy Attorney General with Mr. Samarendra Nath Biswas. Assistant Attorney General & Mr. Md. Jahangir Alam, Assistant Attorney General, For the Government.
Judgment delivered on 17 January, 2011
Md. Imman Ali, J: By this application filed under Article 102(2) of the Constitution the petitioner challenges a gazette notification under memo No ¯^?(???-?) ????? ????? ????????????-?/????/???? dated 31.10.2010 (Annexure-E.) with reference to a gazette notification dated 14.10.2010 SRO No.348 Ain/2010 (Annexure-E-l) transferring Kafrul (DMP) P.S. Case No.17 dated 13.09.2005 corresponding to G.R. No.454 of 2005, Sessions Case No.2657 of 2009 from the Court of Joint Metropolitan Sessions Judge, 2nd Court, Dhaka to the Druta Bichar Tribunal No.4, Dhaka where it is currently pending.
2. The learned advocate for the petitioner submits that the case was initially transferred to the Druta Bichar, Tribunal-3, Dhaka by gazette notification dated 2nd August, 2009 where it was numbered as Tribunal Case No. 1 of 2009. That tribunal was in seisin of the case from 2.8.2009 to 26.5.2010 and in the course of trial charge was framed and as many as 16 witnesses were examined. But as the Tribunal was unable to conclude the trial within the period stipulated by law, namely section 10 of the Druta Bichar Tribunal Ain, 2002, i.e, within a period of 135 days, by order dated 26.05.2010 the case was returned to the Court of Metropolitan Sessions Judge in accordance with section 10(4) of the Druta Bichar Tribunal Ain, 2002. The learned advocate submits that there is no provision in the law for a further gazette notification for sending the case to another Druta Bichar Tribunal. He points out that the scheme of the law is such that when a tribunal cannot conclude the trial within the time stipulated the case is liable to be returned to the Court of Session from which it was sent to the Druta Bichar Tribunal in accordance with section 10(4), and section 10(5) provides the procedure as to how the trial will continue before the Court of Session, where the case is returned. The learned advocate points out that section 10(5) mandates that the case which is returned from the Druta Bichar Tribunal will be given priority over all other cases and it will continue from the stage where it was left off at the trial before the Tribunal and the trial will continue without any break. Unless there is unavoidable reason, which will have to be recorded, there will be no adjournment. The learned advocate submits that, therefore, the scheme of the law is that once the case is returned to the Court of Session then the trial will continue there until the end and will result in a judgment. The learned advocate submits that in view of section 10(5), where the Court of Session is liable to continue the trial without any break or adjournment the same cannot be retransferred to the Druta Bichar Tribunal. The learned advocate submits that section 6 of the Druta Bichar Tribunal Ain provides for transfer of the case for the sake of expeditious trial in certain cases to the Druta Bichar Tribunal, but there is no provision for retransfer of any case after it has been returned to the Court from which it was sent to the Druta Bichar Tribunal.
3. In this matter the learned Deputy Attorney General assisted us by providing two decisions, one of the High Court Division in the case of SM Mozammel Hoque Talukder and others vs State, 13 BLC 237 and another of the Appellate Division in the case of Abdul Kader Mirza and ors. vs Bangladesh and others, 60 DLR(AD) 185. He submits that the transfer of a case from the trial Court to the Druta Bichar Tribunal is purely for the purpose of expeditious hearing and early disposal, which is in consonance with the
spirit of criminal Jurisprudence and Article 35(3) of the Constitution. He submits that there is no bar within the law to send the case back to another Druta Bichar Tribunal.
4. We have considered the submissions of the learned advocates, perused the petition as well as the relevant law and the cases referred by the learned Deputy Attorney General.
5. It appears to us that the scheme of the law is apparent from the preamble to the law, which states as follows:
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