High Court Division :
(Statutory Original Jurisdiction)
Md Rezaul Hasan J
Keya Cosmetic Ltd …………..
………..Petitioner
vs
Dewan Hanif Mahmud and
others ………………..
……….. Contemnors- Respondents *
Judgment September 4th, 2014.
Constitution of Bangladesh, 1972
Article 39(2)
Publishing report or making comments in any manner, regarding matter which is sub-judice, tends to influence the decision making process of the judges, and amounts to interference with the independence of judiciary, which is a basic structure of the Constitution and a precondition to ensure the Rule of law. Even such comments may be mane with deliberate intention to stiffle the course of justice, which will pose a serious threat to the litigant’s right to get justice in all fairness. A journalist or other person should have this elementary knowledge and must not arrogate to himself/themselves a jurisdiction, which is vested in the Court, nor should they try to polute the holy fountain of justice.. ….. (9)
Sub-judice matter
Judges are oath bound to discharge their functions without fear or favour and without taking into consideration of what are written or said about a sub-judice matter, but they cannot ignore the public perception about the judiciary and its dignity, which is to be guarded uncompromisingly to uphold the rule of law and compliance of court’s order. . ….. (10)
Trial by media
If any person is interested to appear and participate in the proceedings, they can file an application for addition of party and place their case in the course of hearing of the matter. Making such comments in a sub-judice matter, which is otherwise described as ‘trial by media’, is neither permitted by the Constitution, nor by the provisions of the Statutes.
Shafique Ahmed with Mahmud Shafique and Faysal Hasan Arif. Advocates-For the Contemnors-Respondents No.1 and 2.
Nitai Roy Chowdhury with Debasish Roy Chowdhury : Advocates-For the Petitioner.
Judgment
The contemnor Nos. 1 and 2 are present before this Court as per order dated 8-7-2014 and have filed an application seeking exemption of the charges by offering unconditional apology before this Court.
2. The learned counsel, Mr Shafique Ahmed with Mr Mahbub Shafique for the contemnor Nos. I and 2, having drawn my attention to the contempt Rule and having placed the petition, submits that this Court has admitted Company Matter No. 235 of 2013 on 17-11-2013, considering the facts and also relevant materials annexed to the petitioner and in order to ensure transparency in the matter of amalgamation and to protect the interest of all quarters the court has passed necessary directions in the order of admission, dated 17-11-2013. Indeed, out of ignorance that in a sub-judice matter such reports in newspaper cannot be published, the incriminating articles were published in the newspapers by the contemnors. Now, having realised their fault they have offered sincere and unconditional apology before this Court and have undertaken to be alert and vigilant in future. The learned counsel further submits that their apology may be accepted in these circumstances and further considering that they are the beginners in their carrier as journalist and have long way to go. Accordingly, he prayed for exempting these two contemnors from the charge of committing contempt of court.
3. The learned Advocates of the applicants are present and they did not oppose.
4. Heard the learned Advocate for the contemnors No. 1 and 2, perused the petition and the affidavit filed by the contemners.
5. In the order dated 17-9-2013, by which the petitioner for amalgamation was admitted, the Court has passed following directions, namely-
Let this petition be registered, subject to compliance of the following directions-
(1) The petitioners are directed to convene a meeting of the members and to place the scheme of amalgamation before the members, for the purpose of their consideration, in the General Meeting and for their approval, with or without modification, as per sub-section (2) of section 228.
(2) The scheme shall be kept open in the registered office of both the companies and be available for inspection by all concerned (during office hours).
(3) Notice of the Meeting shall be sent (enclosing a copy of the proposed scheme) to all the members of both the transferor and transferee companies, under registered post, as per provisions of the Companies Act, 1994.
(4) The Chairmen of petitioners (transferee and transferor Company) shall preside over the meetings of the respective company.
(5) The meeting shall be held in the city in which the registered office of the petitioners are situated and at as such time, date and place as may be fixed by the board of director of the petitioners, within the soonest practicable time.
(6) The notice of presentation of this application before this court and also informing the date of general meetings, convened for approval of the scheme, be published in two daily newspapers, one being the “Kalerkantho” and other being the “New Nation” having circulation in the locality where the registered office of the petitioners are situated and at least one week before the date of holding general meeting.
(7) The chairman of the meetings shall submit the reports, within 2(two) weeks of holding the meetings, to this court, and the office is directed to fix this matter in the cause list within 2(two) working days after receiving the report.
(8) The petitioner is further directed to submit an affidavit of facts enclosing NOC from the creditor Banks as well as showing compliance of formalities as may be required under the law applicable to a listed company.
(9) The petitioner shall submit an application within the next seven working days,
for addition of the creditors banks named in Annexure-K and Bangladesh Bank, represented by the General Manager (CJB), as the proforma respondents.
6. As such, the court has ensured that the scheme of amalgamation be sent to the shareholders (members of all company), being enclosed with the notices to be issued for holding Extraordinary General Meetings (EGM) of the respective companies, for placing and considering the scheme by the members of each company. It was also directed that the meeting shall be held in the city in which the registered office of the company is situated so that the shareholders/members of these companies can attend the meetings. It was also directed that the lenders banks and the Bangladesh Bank should be impleaded as parties, whereas the Bangladesh Securities & Exchange Commission as well as the Ministry of Commerce & Industries are already parties to the petition for amalgamation.
7. These two journalists of a newspaper named ‘Banik Barta’ published a report under the title VK‡eb †kqvi †nvìvi wRZ‡eb D‡`¨v³v referring to the petition for amalgamation filed and pending before the court. Anyone can file application to add him/themselves as parties, give notices of presentation of this petition which in the meantime have been advertised its newspaper, as per Rules, for drawing attention of all interested in or having any stake in the matter. Besides, the court has passed necessary directions to protect interest of all concerned and to ensure hearing in presence of necessary parties. Moreover, if the shareholders or anyone of them disapprove(s) the scheme for any reason, they can bring their objection to the notice of the Court by filing application.
8. In my considered opinion, in such circumstance, the conduct of the contemnor no doubt amounts to contempt of Court and they have no absolute right as regard the freedom of expression in the press or electronic media or in any other manner. This freedom is qualified by Article 39(2) of the Constitution, that provides that freedom of expression is subject to law relating to contempt of court, amongst other. Besides, further limitation is imposed by sections 500 and 505A of the Penal Code in other cases, as well as under the provisions of other statute.
9. It should be recorded here that, publishing report or making comments in any manner, regarding matter which is sub-judice, tends to influencing the decision making process by the judges, and amounts to interference with the independence of judiciary, which is a basic structure of our Constitution and a pre-condition to ensure Rule of law. Even such comments may be made with deliberate intention to stiffle the course of justice, which will pose a serious threat to the litigant’s right to get justice in all fairness. A journalist or other person should have this elementary knowledge and must not arrogate to himself/ themselves a jurisdiction, which is vested in the Court, nor should they try to pollute the holy fountain of justice.
10. Judges are oath bound to discharge their functions without fear or favour and without taking into consideration of what are written or said about a sub-judice matter, but they cannot ignore the public perception about the judiciary and its dignity, which is to be guarded uncompromisingly to uphold the rule of law and compliance of court’s order.
11. The Companies Act, 1994, permits filing an application for amalgamation and at the time of admission of such application the Court has passed necessary directions to secure the interests of the company, the members (shareholders), the creditors and other stakeholders. Moreso, if any person is interested to appear and participate in the proceedings, they can file an application for addition of party and place their case in the course of hearing of the matter, as mentioned hereinbefore. Making such comments in a sub-judice matter, which is otherwise described as ‘trial by media’, is neither permitted by the Constitution, nor by the provisions of the Statutes.
12. The contemners, as such, deserve exemplary punishment by way of putting them into jail and/or awarding exemplary fine. However, considering the submissions of the learned Advocate as well as the unconditional apology offered by the contemnors and expressing assurance to be alert in future, the apology is accepted. The contemnor Nos. 1 and 2 are exempted from the charge brought against them.
(Statutory Original Jurisdiction)
Md Rezaul Hasan J
Keya Cosmetic Ltd …………..
………..Petitioner
vs
Dewan Hanif Mahmud and
others ………………..
……….. Contemnors- Respondents *
Judgment September 4th, 2014.
Constitution of Bangladesh, 1972
Article 39(2)
Publishing report or making comments in any manner, regarding matter which is sub-judice, tends to influence the decision making process of the judges, and amounts to interference with the independence of judiciary, which is a basic structure of the Constitution and a precondition to ensure the Rule of law. Even such comments may be mane with deliberate intention to stiffle the course of justice, which will pose a serious threat to the litigant’s right to get justice in all fairness. A journalist or other person should have this elementary knowledge and must not arrogate to himself/themselves a jurisdiction, which is vested in the Court, nor should they try to polute the holy fountain of justice.. ….. (9)
Sub-judice matter
Judges are oath bound to discharge their functions without fear or favour and without taking into consideration of what are written or said about a sub-judice matter, but they cannot ignore the public perception about the judiciary and its dignity, which is to be guarded uncompromisingly to uphold the rule of law and compliance of court’s order. . ….. (10)
Trial by media
If any person is interested to appear and participate in the proceedings, they can file an application for addition of party and place their case in the course of hearing of the matter. Making such comments in a sub-judice matter, which is otherwise described as ‘trial by media’, is neither permitted by the Constitution, nor by the provisions of the Statutes.
Shafique Ahmed with Mahmud Shafique and Faysal Hasan Arif. Advocates-For the Contemnors-Respondents No.1 and 2.
Nitai Roy Chowdhury with Debasish Roy Chowdhury : Advocates-For the Petitioner.
Judgment
The contemnor Nos. 1 and 2 are present before this Court as per order dated 8-7-2014 and have filed an application seeking exemption of the charges by offering unconditional apology before this Court.
2. The learned counsel, Mr Shafique Ahmed with Mr Mahbub Shafique for the contemnor Nos. I and 2, having drawn my attention to the contempt Rule and having placed the petition, submits that this Court has admitted Company Matter No. 235 of 2013 on 17-11-2013, considering the facts and also relevant materials annexed to the petitioner and in order to ensure transparency in the matter of amalgamation and to protect the interest of all quarters the court has passed necessary directions in the order of admission, dated 17-11-2013. Indeed, out of ignorance that in a sub-judice matter such reports in newspaper cannot be published, the incriminating articles were published in the newspapers by the contemnors. Now, having realised their fault they have offered sincere and unconditional apology before this Court and have undertaken to be alert and vigilant in future. The learned counsel further submits that their apology may be accepted in these circumstances and further considering that they are the beginners in their carrier as journalist and have long way to go. Accordingly, he prayed for exempting these two contemnors from the charge of committing contempt of court.
3. The learned Advocates of the applicants are present and they did not oppose.
4. Heard the learned Advocate for the contemnors No. 1 and 2, perused the petition and the affidavit filed by the contemners.
5. In the order dated 17-9-2013, by which the petitioner for amalgamation was admitted, the Court has passed following directions, namely-
Let this petition be registered, subject to compliance of the following directions-
(1) The petitioners are directed to convene a meeting of the members and to place the scheme of amalgamation before the members, for the purpose of their consideration, in the General Meeting and for their approval, with or without modification, as per sub-section (2) of section 228.
(2) The scheme shall be kept open in the registered office of both the companies and be available for inspection by all concerned (during office hours).
(3) Notice of the Meeting shall be sent (enclosing a copy of the proposed scheme) to all the members of both the transferor and transferee companies, under registered post, as per provisions of the Companies Act, 1994.
(4) The Chairmen of petitioners (transferee and transferor Company) shall preside over the meetings of the respective company.
(5) The meeting shall be held in the city in which the registered office of the petitioners are situated and at as such time, date and place as may be fixed by the board of director of the petitioners, within the soonest practicable time.
(6) The notice of presentation of this application before this court and also informing the date of general meetings, convened for approval of the scheme, be published in two daily newspapers, one being the “Kalerkantho” and other being the “New Nation” having circulation in the locality where the registered office of the petitioners are situated and at least one week before the date of holding general meeting.
(7) The chairman of the meetings shall submit the reports, within 2(two) weeks of holding the meetings, to this court, and the office is directed to fix this matter in the cause list within 2(two) working days after receiving the report.
(8) The petitioner is further directed to submit an affidavit of facts enclosing NOC from the creditor Banks as well as showing compliance of formalities as may be required under the law applicable to a listed company.
(9) The petitioner shall submit an application within the next seven working days,
for addition of the creditors banks named in Annexure-K and Bangladesh Bank, represented by the General Manager (CJB), as the proforma respondents.
6. As such, the court has ensured that the scheme of amalgamation be sent to the shareholders (members of all company), being enclosed with the notices to be issued for holding Extraordinary General Meetings (EGM) of the respective companies, for placing and considering the scheme by the members of each company. It was also directed that the meeting shall be held in the city in which the registered office of the company is situated so that the shareholders/members of these companies can attend the meetings. It was also directed that the lenders banks and the Bangladesh Bank should be impleaded as parties, whereas the Bangladesh Securities & Exchange Commission as well as the Ministry of Commerce & Industries are already parties to the petition for amalgamation.
7. These two journalists of a newspaper named ‘Banik Barta’ published a report under the title VK‡eb †kqvi †nvìvi wRZ‡eb D‡`¨v³v referring to the petition for amalgamation filed and pending before the court. Anyone can file application to add him/themselves as parties, give notices of presentation of this petition which in the meantime have been advertised its newspaper, as per Rules, for drawing attention of all interested in or having any stake in the matter. Besides, the court has passed necessary directions to protect interest of all concerned and to ensure hearing in presence of necessary parties. Moreover, if the shareholders or anyone of them disapprove(s) the scheme for any reason, they can bring their objection to the notice of the Court by filing application.
8. In my considered opinion, in such circumstance, the conduct of the contemnor no doubt amounts to contempt of Court and they have no absolute right as regard the freedom of expression in the press or electronic media or in any other manner. This freedom is qualified by Article 39(2) of the Constitution, that provides that freedom of expression is subject to law relating to contempt of court, amongst other. Besides, further limitation is imposed by sections 500 and 505A of the Penal Code in other cases, as well as under the provisions of other statute.
9. It should be recorded here that, publishing report or making comments in any manner, regarding matter which is sub-judice, tends to influencing the decision making process by the judges, and amounts to interference with the independence of judiciary, which is a basic structure of our Constitution and a pre-condition to ensure Rule of law. Even such comments may be made with deliberate intention to stiffle the course of justice, which will pose a serious threat to the litigant’s right to get justice in all fairness. A journalist or other person should have this elementary knowledge and must not arrogate to himself/ themselves a jurisdiction, which is vested in the Court, nor should they try to pollute the holy fountain of justice.
10. Judges are oath bound to discharge their functions without fear or favour and without taking into consideration of what are written or said about a sub-judice matter, but they cannot ignore the public perception about the judiciary and its dignity, which is to be guarded uncompromisingly to uphold the rule of law and compliance of court’s order.
11. The Companies Act, 1994, permits filing an application for amalgamation and at the time of admission of such application the Court has passed necessary directions to secure the interests of the company, the members (shareholders), the creditors and other stakeholders. Moreso, if any person is interested to appear and participate in the proceedings, they can file an application for addition of party and place their case in the course of hearing of the matter, as mentioned hereinbefore. Making such comments in a sub-judice matter, which is otherwise described as ‘trial by media’, is neither permitted by the Constitution, nor by the provisions of the Statutes.
12. The contemners, as such, deserve exemplary punishment by way of putting them into jail and/or awarding exemplary fine. However, considering the submissions of the learned Advocate as well as the unconditional apology offered by the contemnors and expressing assurance to be alert in future, the apology is accepted. The contemnor Nos. 1 and 2 are exempted from the charge brought against them.
