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In the Supreme Court of Bangladesh 274 Ministry of Law, Justice & Parl. Afrs. =VS= BLAST (S.K. Sinha, CJ) 3 LM (AD) 2017 (2) IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION (CIVIL) Present: Surendra Kumar Sinha, CJ Bangladesh, represented by the Secretary, Syed Mahmud Hossain, J Ministry of Law, Justice and Parliamentary Hasan Foez Siddique, J Affairs and others: Mirza Hussain Haider, J …Appellants. =VS= Date of hearing: Bangladesh Legal Aid and Services Trust 22nd March, 11th and 24th May, 2016. (BLAST) represented by Dr. Shahdeen Date of Judgment: 24th May, 2016. Malik and others: Result: Dismissed. ...Respondents. CIVIL APPEAL NO.53 OF 2004. (From the judgment and order dated 07.04.2003 passed by the High Court Division in Writ Petition No.3806 of 1998.) ADVOCATES WHO APPEARED IN THESE CASE: For the Appellants: Mr. Mahbubey Alam, Attorney General, (with Mr. Murad Reza, Additional Attorney General and Mr. Sheik Saifuzzaman, Deputy Attorney General, instructed by Mr. Ferozur Rahman, Advocate-on-Record. For the Respondents: Dr. Kamal Hossain, Senior Advocate, Mr. M. Amirul Islam, Senior Advocate, (with Mr. Idrisur Rahman, Advocate & Mrs. Sara Hossain Advocate,) instructed by Mrs. Sufia Khatun, Advocate-on-Record. CASES REFERRED: 01. C. F. Abdur Rahim in his Book “Muhammadan Jurisprudence (1958 Edn) P.L.D. Lahore, pp. 25-26 (Para-12) 02. Constitutional Documents, Vol. I, Government of Pakistan, Ministry of Law & Parliamentary Affairs (Law Div), at p 9 (Para-17) 03. Arthur Berriedale Keith 1600-1935 (Methuen's 2nd Edn) at pp 6-7. (Para-12) 04. Sir George Claus Rankin, Background to Indian Law, Cambridge University Press. (1946 Edn) at p 1 (Para-19) 05. Sir Charles Grey C.J" October 2, 1829, Parliamentary Papas, 1831, Vol. VI, p 54 (Para-21) 06. A.T. Mridha v. State 25 DLR 353 (Para-48) 07. Subramaniam Swami v. Union of India, W.P. No.8 of 2015. (Para-69) 08. Novva Das v. Secretary, Department of Municipal Administration and Water Supply, (2008) 8 SCC 42; Sheikh Abdur Sabur v. Returning Officer, 41 DLR(AD)30; Bangladesh v. Shafiuddin Ahmed, 50 DLR(AD)27; Kesavananda Bharti v. Kerala, AIR 1973 SC 1461; Siddique Ahmed v. Bangladesh, 33 DLR(AD)129; Kudrat-E-Elahi Panir v. Bangladesh; 44 DLR(AD)319, Khondker Delwar Hossain v. Italian Marble Works Ltd.; 62 DLR(AD)298, National Board of Revenue v. Abu Saeed Khan, 18 BLC(AD)116. (Para-71) 09. Secretary Ministry of Finance v. Masdar Hossain, 20 BLD(AD)104; Kudrat-Elahi Panir v. Bangladesh, 44 DLR(AD)319; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; Vishaka v. State of Rajastan, AIR 1997 SC 3011; Union of India v. Association for Democratic Reforms, 2002(5)SC 294; Joginder Kumar v. State of UP, AIR 1994 SC 1349; Nandini Sathapathy v. PL Dhani, AIR 1978 SC 1025; Raj Narayan v. Superintendent of Central Jail, AIR 1971 SC 178; Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC117; Saifuzzaman (Md) v. State, 56 DLR 324. (Para-73) 10. HRQ 15(1993) P.357 (Para-75) 11. Entick v. Carringtion, (1765) EWHC KB J98:95 ER 807: [1558-1774] All ER Rep 41(Para-80) THE LAW MESSENGER 3 LM (AD) 2017 (2) Ministry of Law, Justice & Parl. Afrs. =VS= BLAST (S.K. Sinha, CJ) 275 12. Eshugbayi Eleko V. Officer Administering the Government of Nigeria, Chief Secretary of the Government of Nigeria, (1913) Appeal No.42 of 1930 (Para-81) 13. Anwar Hossain Chowdhury v. Bangladesh 41 DLR(AD) 165 ; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; I.R. Coelho v. State of T.N. (2007) 2 SCC 1;Indira Nehru Gandhi v. Raj Narain, AIR 1975 S.C.C. 2299, (Para-83) 14. S.G. Jaisinghani v. Union of India, (1976) 2 SCR 703: AIR 1967 SC 1427; Khudiram Das v. State of W.B., (1975) 2 SCC 81 (Para-85) 15. Text, Cases, and Materials (2013), 2nd Edn., Oxford University Press (Para-87) 16. Olmstead v. United States, 277 US 438 (Para-88) 17. D.K. Basu v. State of W.B., (1997) 1 SCC 416 (Para-89) 18. Constitutional Law of Bangladesh, Third Edition Mahmudul Islam (Para-92) 19. N.R. Madhava Menon, Rule of Law in a Free Society (2008), Oxford University Press, p. 11 (Para-95) 20. Waghela Rajsanji v. Sheikh Masludin, (1887) LR 14 I.A. 89(96) (Para-111) 21. Munn v. People of Illinois, 94 US 113.) ;Vikram v. Bihar, AIR 1988 S.C 1782(Para-115) 22. Edge,CJ. in Mannu, ILR 19 All 390 (Para-146) 23. Mr. Murad Reza, Novva Das V. Secretary, Department of Municipal Administration and Water Supply, (2008) 8 SCC 42 (Para-165) 24. Secretary, Ministry of Finance, Government of Bangladesh v. Md. Masdar Hossain, 20 BLD(AD)104 (Para-170) 25. Supreme Court of Pakistan in Government of Sindh v. Sharaf Faridi, PLD 1994 SC 105 (Para-171) 26. Kudrat-E-Elahi Panir v. Bangladesh, 44 DLR(AD)319 (Para-172) 27. Supreme Court of Pakistan in State v. Zia-ur-Rahman, PLD 1973 SC 49 (Para-173) 28. Vishaka v. State of Rajastan, AIR 1997 SC 3011; The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Teoh, 128 AIR 353 (Para-176) 29. Vineet Narain v. Union of India, (1998) 1 SCC 226 (Para-178) 30. People’s Union for Civil Liberties v. Union of India, 2003 (4)SCC 399 (Para-180) 31. Erch Sam Kanga v. Union of India, W.P.No.2632 of 1978,; Lakshmi Kanti Pandey v. Union of India, (1984) 2 SCC 244, guidelines for adoption of minor children by foreigners were formulated. In State of W.B. v. Sampat Lal, (1985) 1 SCC 317; K. Veeraswami v. Union of India, (1991) 3 SCC 655; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584; Delhi Judicial Service Association v. State of Gujrat, (1991) 4 SCC 406; Delhi Development Authority v. Skipper Construction Co. Ltd., (1996) 4 SCC 622 and Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 (Para-181) 32. Jagindra Kumar v. State of U.P., (1994) 4 SCC 260 (Para-185) 33. Smt. Nandini Satpatty v. PL Dhani, AIR 1978 S.C. 1025 (Para-186) 34. Raj Narain v. Superintendent, Central Jail, New Delhi, AIR 1971 SC 178, (Para-187) 35. Saifuzzaman (Md.) v. State, 56 DLR 324 (Para-188) 36. Aslam v. State (1992) 4 S.C.C 272 (Para-196) 37. Earl Warren, CJ. in Cooper v. Aron, 358 US 1(1958) 18 “US Supreme Court, such as, Fletcher v. Peck, 10 U.S. 87(1810); Dartmouth College v. Woodward, 17 U.S. 518 (1819); and Cohens v. Virginia, 19 U.S. 264(1821) (Thomas Jefferson to Adams September 11, 1884). (Para-198) 38. Marbury v. Madison (1803) 5 US 137 (Para-199) 39. Johnson v. Zerbst, 304 U.S. 458(1938; Gideon v. Wainwright Gideon, 372 U.S. 335 (1963) (Para-206) 40. Massiah v. United States, 377 U.S. 201(1964) (Para-207) HEAD NOTE: Code of Criminal Procedure [V of 1898] Sections 54 and 167– The first question to be considered is whether the High Court Division has illegally presumed the misuse of power by the police while using the power under sections 54 and 167 of the Code. ...(Para-124) THE LAW MESSENGER 276 Ministry of Law, Justice & Parl. Afrs. =VS= BLAST (S.K. Sinha, CJ) 3 LM (AD) 2017 (2) Code of Criminal Procedure [V of 1898] Section-54, 60, 61, 167 and 176– Sections 54, 60, 61, 167 and 176 of the Code are relevant for our consideration which read as follows: “54.(1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest- firstly , any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking; thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Government; fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; fifthly, any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; sixthly, any person reasonably suspected of being a deserter from the armed forces of Bangladesh; seventhly , any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh; eighthly , any released convict committing a breach of any rule made under section 565, sub- section (3); ninthly, any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
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