(Special Original Jurisdiction)
Moyeenul Islam Chowdhury J
JBM Hassan J
Yousuf Gazi (Md)…………………….Petitioner
Court of Sessions
Judge, Khulna and
Others……….. Respondents
Judgment
March 2nd, 2017
Constitution of Bangladesh, 1972
Article 102(2)
It is a settled proposition of law that a fugitive from law cannot get any protection from any Court. Unless and until the petitioner submits to the sentence passed against him, he cannot seek redress in any Court of law……………. (6)
Chairman, Anti-Corruption Commission vs Enayetur Rahman, 64 DLR (AD) 14; Anti-Corruption Commission vs Mehedi Hasan, 67 DLR (AD) 137 and Golam Nabi vs Anti-Corruption Commission, 65 DLR 181 ref.
KB Rumy, Advocate-For the Petitioner.
Khan Ziaur Rahman, Advocate-For the Respondent No.4.
Judgment
Moyeenul Islam Chowdhury J : On an application under Article 102 of the Constitution filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why the judgment and order of conviction and sentence dated 5-10-2011 passed by the Additional Sessions Judge, 3rd Court, Khulna in Criminal Appeal No. 183 of 2208 (Annexure-‘D’ to the Writ Petition) should not be declared to be without lawful authority and of no legal effect and why the Additional Sessions Judge, Khulna should not be directed to rehear and dispose of the Criminal Appeal No. 183 of 2008 and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Facts relevant for the purpose of disposal of the Rule may be, briefly, stated as follows:
One Saif Humayun Kabir (respondent No.4) lodged CR Case No. 19C of 2004 against the petitioner in the Court of the Chief Metropolitan Magistrate, Khulna under Section 420 of the Penal Code on the grounds, inter alia, that the complainant (respondent No.4) is an employee of Dada Match Factory, Khulna and the petitioner being a businessman by profession used to supply wood to Dada Match Factory on a regular basis. In this way, a good relationship developed between the petitioner and the respondent No.4. Eventually the respondent No.4 provided the petitioner with a sum of Taka 3,85,000 in 2 (two) installments for partnership business. Subsequently, the petitioner issued a cheque bearing No. 04-AB-1794161 dated 24-11-2003 in favour of the respondent No. 4 towards repayment of the aforesaid amount of’ money; but the cheque was dishonored by Agrani Bank, Liakotnagar Branch, Khulna because of insufficiency of funds. In spite of repeated requests to the petitioner made by the respondent No.4, the petitioner failed to repay the money. Finding no other alternative, the respondent No.4 initiated the case against the petitioner. At one stage, the case was transferred to the Court of Additional Chief Metropolitan Magistrate, Khulna. On the basis of the evidence and materials on record, the Additional Chief Metropolitan Magistrate did not find the petitioner guilty of the charge leveled against him under Section 420 of the Penal Code and accordingly, he acquitted the petitioner by the judgment and order dated 25-5-2008. As against the judgment and order of acquittal dated 25-5-2008 passed by the Additional Chief Metropolitan Magistrate, Khulna, the respondent No. 4 preferred Criminal Appeal No. 183 of 2008 in the Court of Sessions Judge, Khulna which was transferred to the 3rd Court of Additional Sessions Judge, Khulna for disposal. However, the learned Additional Sessions Judge, 3rd Court Khulna heard the appeal in absentia and convicted the petitioner under Section 420 of the Penal Code and sentenced him there under to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Taka 5,000, in default, to suffer simple imprisonment for a further period of 6 (six) months by his judgment and order dated 5-10-2011. As against the judgment and order dated 5-10-2011 passed by the Additional Sessions Judge, 3rd Court, Khulna in Criminal Appeal No. 183 of 2008, the petitioner filed the Writ Petition and obtained the present Rule.
3. Mr KB Rumy, learned Advocate for the petitioner, does not appear before this Court at the time of hearing of the Rule.
4. Mr Khan Ziaur Rahman, learned Advocate appearing on behalf of the respondent No. 4, submits that as a fugitive, the convict-petitioner preferred the instant Writ Petition before this Court and as he failed to submit to the sentence passed against him by the Court of Appeal below, the Writ Petition is not maintainable.
5. We have heard the submission of the learned Advocate Mr Khan Ziaur Rahman and perused the Writ Petition and relevant Annexures annexed thereto.
6. It transpires that the petitioner being a convict invoked the writ jurisdiction of the High Court Division under Article 102 of the Constitution as a fugitive from law. It is a settled proposition of law that a fugitive from law cannot get any protection from any Court. Unless and until the petitioner submits to the sentence passed against him, he cannot seek redress in any Court of law. So on this score alone, the Rule is not maintainable.
7. However, in the decision in the case of Chairman, Anti-Corruption Commission vs Enayetur Rahman, 64 DLR (AD) 14, it has been spelt out by the Appellate Division in paragraph 7:
“7. This Court on repeated occasions argued that Article 102(2) of the Constitution is not meant to Circumvent the statutory procedures. The High Court Division will not allow a litigant to invoke the extra-ordinary jurisdiction to be converted into Courts of appeal or revision. It is only where statutory remedies are entirely ill-suited to meet the demands of extra-ordinary situations, that is to say, where vires of a statute is in question or where the determination is mala fide or where any action is taken by the executives in contravention of the principles of natural justice or where the fundamental right of a citizen has been affected by an act or where the statute is intra vires, but the action taken is without jurisdiction and the vindication of public justice requires that recourse may be had to Article 102(2) of the Constitution.”
8. The facts leading to the issuance of the present Rule, according to us, do not attract any of the extra-ordinary situations that have been specified in paragraph 7 of the decision reported in 64 DLR (AD) 14.
9. In the decision in the case of Anti-Corruption Commission vs Mehedi Hasan reported in 67 DLR (AD) 137, it has been held in paragraph 27:
“27. As regards Civil Petition for Leave to Appeal No. 652 of 2013 arising out of Writ Petition No. 7242 of 2008, we are of the view that there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the vires of the law involved is challenged. Having gone through the Rule-issuing order, we find that the vires of the law involved in the present case has not been challenged. Therefore, there is no scope for aggrandizement of jurisdiction of the High Court Division in quashing a criminal proceeding. Consequently, the High Court Division was not justified in quashing 15 criminal cases (Special Case Nos. 12-26 of 2007) in exercise of its power under Article 102 of the Constitution.”
10. Besides, in the decision in the case of Golam Nabi vs Anti-Corruption Commission reported in 65 DLR 181, it has been unmistakably held that the decision reported in 64 DLR (AD) 14 has ousted the jurisdiction of the writ Court to quash the proceedings of a criminal case unless the ‘vires’ of any law is found to have been challenged.
11. Coming back to the case in hand, indisputably the petitioner has not challenged the ‘vires’ of any law. Given this scenario, it is crystal clear that the petitioner could have sought necessary remedies against the impugned judgment and order of conviction and sentence dated 5-10-2011 passed by the Additional Sessions Judge, 3rd Court, Khulna in Criminal Appeal No. 183 of 2008 which are available within the four corners of the relevant statue, that is to say, the Code of Criminal Procedure, 1898.
12. In view of the foregoing discussions and in the facts and circumstances of the case, we are led to hold that the Rule is not maintainable.
13. Accordingly, the Rule is discharged as being not maintainable without any order as to costs.
14. The learned Additional Sessions Judge, 3rd Court, Khulna is, however, directed to proceed with the trial of the case in accordance with law.
Communicate a copy of this judgment to the Court below at once for information and necessary action.
