IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION) Criminal Miscellaneous (Suo Moto) Rule No. 110 of Decided On:

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1 IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION) Criminal Miscellaneous (Suo Moto) Rule No. 110 of 2001 Decided On: Appellants: Daily Star and Protham Alo Patrika Vs. Respondent: State Hon'ble Judges: Md. Ali Asgar Khan and SK Sinha, JJ. For Respondents/Defendant: M Faruq, Deputy Attortiey General Subject: Criminal law Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1898 (CrPC) - Section 170; Code of Criminal Procedure, 1898 (CrPC) - Section 171; Code of Criminal Procedure, 1898 (CrPC) - Section 173; Code of Criminal Procedure, 1898 (CrPC) - Section 173(1) JUDGMENT SK Sinha, J. 1. This Suo Moto Rule was issued calling upon the State to show cause as to why Mr. Qamrul Islam, learned Public Prosecutor, Dhaka who is in charge of Sessions Case No of 1999 pending in the court of learned Metropolitan Additional Sessions Judge, 5th Court, Dhaka should not be changed and a Special Public Prosecutor be appointed for conducting the case or pass such other or further order or orders as to this court may seem fit and proper. Facts -leading to the issuance of the Rule are as follows: The Daily Star in its issue of published an article titled "Murder at DB Office. Hearing of case again adjourned." The article was relating to murder of Jalal on whose decomposed body was recovered from a roof-top water tank of office- of Deputy Commissioner DB and Deputy Commissioner (South), 36 Minto Road, Dhaka on at 6-00 AM. One AH Asam, SI of Ramna Police Station lodged an FIR with Ramna Police Station on being Ramna PS Case No. 157 dated The Daily Star published another article in the issue of under caption "Police say: Missing Star reporter finds her in 3 hours." The article was published in the following terms:- Charges of Jalal Murder Case were framed against accused persons by the learned Metropolitan Additional Sessions Judge, 5th Court, Dhaka in 1999 and summons were issued upon the prosecution witnesses but no witness was produced by the prosecution side before the court during the last one year; that prosecution side claimed in court on Monday that witness in Jalal Murder Case could, not be traced; the victim's wife Halima told The Daily Star yesterday that she and her children were told by the public prosecutor to keep away until he called her, that after the report of disappearance appeared in The Daily Star on Tuesday, it took the correspondent only 3 hrs to track down Jalal's family at Mohammadpur; that Halima said whenever she went to public prosecutor Advocate Qamrul Islam she was told to keep away from the court; that Halima and her children have been subjected to physical assault, harassment and intimidation since the brutal murder of detective branch source Jalal Ahmed Shafi; that two men in plain clothes identifying

2 themselves as relatives of the main accused in the case, Inspector Ziaul Hasan, went to her residence and offered taka ten lac to withdraw the case; that the lawyer and me brother came to her and asked her to change her story slightly in court in exchange of money; that Qamrul Islam admitted that he had told Halima to keep away as he said he had been so busy with Nikuhja and Rubel murder cases; that when contacted, CUD. investigating officer ASP Munshi Atiqur Rahman told the Daily Star that he was aware of the difficulties of Halima Khatun and her children and that when asked why mere was so much delay in the case, the ASP Atiqur Rahman replied that it depended on the public prosecutor. 2. Staff correspondent of The Daily Star again published another article in its issue published on titled that "Hearing of Jalal murder case adjourned till March, 12, in the issue of published another article over the said case under the heading the said article was also published making similar allegations against the learned public prosecutor- Mr. Qamrul Islam and the Investigating Agencies specifically pointing out that in the meantime Kamal. only eye-witness has been assassinated on 16th August at Tejgaon. It may be pointed out here that in spite of publication of articles in two well circulated newspapers making serious allegations pin-pointing the learned Public Prosecutor and the Investigating agencies suspecting their sincerity and honesty of conducting a sensational murder case, none of them issued any rejoinder refuting the allegations made against them till 13th January, Newspaper is a powerful means for propagating political and social views arid moulding the opinions of the people towards their certain ends. It gives an opportunity to the journalist and the people to express their personal views on subjects of their choice having public interest. Through these, they can ventilate their grievances and demand redress. The newspaper is the best means through which the Government may know its defects in administration and so correct its ways for well-being of the people. It is one of the very important things in the life of a civilized nation. It is the medium through which public opinion expresses itself. The press is free to offer criticism on the functioning of the court or its officials as the very idea of the open rule, which has been adopted from the British System, is to make it appear to the world at large as to how the courts of the country are functioning. We believe that in this modern world, news media is one of the strong pillars which furnishes information of loopholes of the administration and its machineries. 4. We have heard the learned Deputy Attorney-General. Mr. M Faruq feebly oppose the Rule and submits that the articles published in the newspapers are not based upon true facts. He submits that there Was further investigation into the case for which the trial of the case could not be held earlier. Mr. Faruq further submits that because of shortage of time he could not file a supplementary affidavit refuting the allegations made in the news items although he received a reply from the Deputy Commissioner, Dhaka. According to Mr. Faruq, charges were framed in the case on and thereafter only 5 dates i.e , , , and were fixed for trial but prosecution could not produce any witness on those dates and in support of his contention, he drew our attention to the reply communicated to him by the Deputy Commissioner, Dhaka along with an explanation given by Mr. Qamrul Islam. Mr. Faruq submits there would arise various complications if a Special Public Prosecutor is appointed in the case. He further submits that learned public prosecutor has been diligently prosecuting" the case and there is no neglect of laches on his part in conducting the case and that if a direction is given for expeditious trial of the case, the learned Public Prosecutor shall take necessary steps for production of witnesses. 5. In order to ascertain the authenticity of the information published about the reported case, we have called for the record of the case being Sessions Case No of 1999 from the learned Metropolitan Additional Sessions-Judges, 5th Court, Dhaka. From the order sheet of the case it appears that the Criminal Investigation Department after completion of investigation, submitted charge sheet in the case against 4 accused persons including one Inspector of DAB on citing 43 witnesses, most of them are public servants. The learned Chief Metropolitan Magistrate after compliance of formalities sent the case record to the learned Metropolitan Sessions Judge, Dhaka for trial where Sessions Case No of 1999 was registered. The case record was eventually sent to the learned Metropolitan Additional Sessions Judge, 5th Court, Dhaka for trial, who framed charge against the accused on and issued summons upon the witnesses of serial Nos. 1-9 of the charge sheet for appearance on which

3 date was fixed for trial. The trial of the case could not be held on that date or on subsequent dates. It was adjourned on , , , , and on the prayer of the prosecution on the ground that no witness turned up. The Learned Metropolitan Additional Sessions Judge issued to witness warrant for compelling the attendance of witness on and but no witness turned up. In the meantime the investigating officer submitted. a supplementary charge-sheet against another accused Md. A Malek on citing 26 witnesses before the learned Chief Metropolitan Magistrate, Dhaka. The learned Metropolitan Additional Sessions Judge received the said supplementary charge sheet on and accordingly he sent the case record to the learned Metropolitan Sessions Judge for passing necessary orders on After compliance of the formalities the case record was' again sent to the learned Metropolitan Additional Sessions Judge who framed charge against the accused MA Malek on Thereafter, the case was adjourned on , , , , , , , and In the meantime, the learned Metropolitan Additional Sessions Judge issued witness warrant for compelling attendance of the witnesses on , , and On all the aforesaid dates, the learned public prosecutor sought adjournments of the case stating; other reason was assigned in the petitions. On , the learned Advocate for the accused Anwar strongly opposed the prayer for adjournment and prayed for bail on the ground that accused is in custody for a long time. The learned Metropolitan Additional Sessions Judge though allowed the prayer for time expressed serious dissatisfaction about the conduct of the learned public prosecutor. He even wrote letters to the Secretary in charge of the Ministry of Home Affairs and the Inspector General of Police, Bangladesh pointing out the neglect and laches oh the part of the prosecution in producing witnesses. Again the learned Metropolitan Additional Sessions Judge in his order dated observed that despite the issuance of repeated witness warrants upon the prosecution witnesses, prosecution did not give satisfactory reply for nonproduction of witnesses, that the Inspector General of Police and Police Commissioner, DMP were also informed vide Memo No dated through the learned public prosecutor intimating the next date of trial but in spite of that, prosecution failed to produce any witness and sought adjournments. It was also observed drat almost all the witnesses are public servants against whom witness warrants were issued on repeated occasions and in spite of that nonappearance of the witnesses was full of mystery, and that on the prayer of the learned public prosecutor for fixing a short date', was fixed for examination of witness Nos. 1-5, for examination of witness No. 6-10, for examination of witnesses No. 15 of the charge-sheet but prosecution did not produce any witness on those dates as well. 7. The whole trend, tenor and contents of the articles tend to reveal the real facts of a sensational case and lead me public to believe that even in the Metropolitan courts of Session, one is highly doubtful of getting justice. 8. The substance of the information furnished in the aforesaid articles are that the learned public prosecutor remained unperturbed from the very beginning of the case which is a sensational murder of jalal whose decomposed body was recovered from the rooftop water tank of Detective Branch's Office at Minto Road, that whenever Jalal's wife Halima Khatun went to the learned public prosecutor, she was told to keep away from the court but the learned public prosecutor sought repeated adjournments on the ground that the witnesses are not available, mat this conduct of the learned public prosecutor created a feeling in the mind that the case is not conducted fairly and property by him and that she has developed an impression that she will not get a fair trial if the case is conducted by him. The other information furnished therein is that although almost all the witnesses are public servants and available at Dhaka, the learned Public Prosecutor did not take proper step for production of witnesses in court and took adjournments of the case without assigning any reason, that on query to him by the reporters, he told them that as he had been busy with two cases, he will take up this case after disposal of those cases.

4 Another information furnished in the articles are that the family members of the deceased Jalal are facing constant threats from the relatives of accused for coming to a compromise in exchange of money, which can be. avoided if the trial-is held in its usual course. 9. In this case we have noticed that in the police report submitted under section 173 CrPC, witness No. 1 SM Ali Azam Siddiqui is the Sub-Inspector of Ramna Police Station, witness No. 2 is the widow of the deceased, witness Nos. 3-5 are the children of the deceased Jalal, witness No. 6 Md. Altaf Hossain Mollah is the Deputy Commissioner (DB), Dhaka Metropolitan Police, witness Nos are police constables, witness No. -11 is Md. Shahjahan an Inspector of Police and so on. On a perusal of the list of the witnesses, we are unable to agree with the prosecution that the witnesses cannot be contacted in spite of issuance of witness warrants. The learned Metropolitan Additional Sessions Judge has expressed his serious dissatisfaction about the conduct of the public prosecutor for seeking repeated adjournments in the case without assigning any reason. Charges were framed in this case on and thereafter, prosecution, took time on 6 dates and after submission of supplementary charge sheet, it took adjournments on 9 (nine) consecutive dates. Therefore, the submission of the learned Deputy Attorney- General that only 5 adjournments were taken in this case by the prosecution is devoid of merits. Rather, the information as furnished by The Daily Star and The Protham Alo cannot be altogether termed as baseless reports, published with a view to lower down the prestige of the learned public prosecutor to the estimation of the litigants in general. One of the reports that Mr. Qamrul Islam admitted to the staff correspondent of The Daily Star that " he had told Halima to keep away as he said he had been too busy with Nikunja and Rubel murder cases finds supports from the observations made by the learned Metropolitan Additional Sessions Judge in the order dated In the order , the learned Judge observed that the learned Public Prosecutor submitted that he could not prepare the case as tie had been busy with Nikunja and Rubel murder cases. 10. A public prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or other irrespective of the true facts involved in the case nor he is expected to show unperturbed in one case and to show interest in particular cases of his choice. If he remains busy with other cases, he could have deputed another public prosecutor for conducting this case. He is not expected to conduct all the cases pending for trial. The expected attitude of the public prosecutor while conducting prosecution must be couched in fairness not only to the court but to the accused as well. Even if the defense lawyer overlooked a vital fact,. the public prosecutor has the responsibility to bring it to the notice of the court if it comes to his knowledge. Normally we do not interfere with the tasks of the public prosecutors as to how he conducts the cases on behalf of the prosecution which are exclusive jurisdiction of the State but in a case in which there are allegations of committing murder in the office of Detective Branch against some law enforcing personnel and where the image of an efficient Branch of Police Department which it has acquired earlier is shaken, this court cannot overlook them even after publication of repeated articles in newspapers alleging serious allegations against him- 11. The administration of the Criminal Law is entrusted with the police. ' The most obvious function of the police is to locate the person who has committed the crime and to arrest such person. But somehow or other in this country it seems that that confidence is lacking. It is the individual character of the policemen that counts a good deal. In this case as observed, there are allegations of serious nature against some police personnel. From a perusal of the record and the discussions made above, we are satisfied that the learned public prosecutor is not diligent nor sincere enough in performing his responsibilities to the estimation of the bereaved family, and to the court below. We are also satisfied that the learned public prosecutor is not giving proper attention to the case and he remains unperturbed in spite of publication of reports making serious allegations against him. Therefore, we are of the opinion that ends of justice will be met if he is relieved of the case and the prosecution of this case is entrusted to a responsible public prosecutor of the State who will be sincere in discharging his duties. Although this Rule was issued for appointing a special public prosecutor in his place, we agree with the views expressed by the learned Deputy Attorney-General that if a special public prosecutor is appointed in this case, there may arise complications in conducting the case. Learned Deputy Attorney-General submits that besides the public prosecutor, there are Additional Public Prosecutors and Assistant Public Prosecutors who have been performing their responsibilities at Dhaka efficiently. Accordingly, we direct the Solicitor, Law, Justice and

5 Parliamentary Affairs and the Deputy Commissioner, Dhaka; to appoint a public prosecutor in this case from among the Additional Public Prosecutors, Assistant Public Prosecutors and the Panel of Advocates enlisted for conducting prosecution, appointed by the State. 12. Before parting, we would like to make some observations about the responsibilities of the investigating agencies in general. We have noticed in this case and in some other cases that the investigating officers did not follow up the. case properly after submission of police reports under section 173(1) CrPC. It seems to- us that they thought that they are relieved of their responsibilities after completion of investigation in a case. It might be due to their ignorance of law or for any other obvious reason. The police officer who has investigated a case has a statutory obligation for ensuring the attendance of the witnesses at the trial under sub-section (2) of section 171 CrPC. Section 171 is reproduced below; 171-(1) No complainant or witness on his way to the court of the Magistrate shall be required to accompany a police-officer or shall be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond. Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in section 170, the officer-in-charge of the police-station may forward him in custody to the Magistrate,. who may detain him in custody until he executes such bond, or until the hearing of the case in completed. (2) Notwithstanding anything contained in subsection (1), it shall be the responsibility of the police-officer to ensure that the complainant or the witness appears before the court at the time of hearing of the case. 13. This sub-section (2) was inserted in the Code of Criminal Procedure by Ordinance No. XXIV of The intention of the legislature for inserting such provision is clear, that the police officer who has investigated the case shall be responsible for the attendance of witnesses at the trial. Once the intention of the law-giver is clear no consideration of practical expediency or possibility of abuse should be allowed to deviate from the natural consequence flowing from the correct interpretation of the statutory provisions of the case. The responsibility is given to the police officer without specifying which police officer is responsible for ensuring the attendance of the witnesses. In the proviso to sub-section (1) of section 171, "the officer-in-charge of the police station" has been mentioned but in sub-section (2) "Police Officer" has been mentioned. Therefore, we are of the opinion that this "Police Officer" means the police officer who has investigated the case otherwise the legislature would have mentioned "the officer-in-charge of the police officer" as mentioned in the proviso to sub-section(l) above. If we consider sub-sections (1) and (2) together, it will appear that this section is applicable in the cases pending before the court of Magistrate. This section 171 is included in part V, Chapter XTV, of the Code of Criminal Procedure, in which, the police is given the statutory right to carry on investigation and set the criminal law in motion. The functions of the judiciary and the police, are complementary, not overlapping and courts' functions begin when a charge is preferred before it and not until then. Therefore, we hold that this sub-section (2) is equally applicable to the trials before the courts of sessions. The administration of the criminal law includes different processes. From start to finish it means apprehension, detention, trial, conviction and custody of offenders. There is another phase too which is concerned with the prevention of crime The agencies to whom this administration of criminal law is entrusted are the police, the courts and the prison houses. The first two agencies pronounce who a criminal is and the function of the other is only to keep the criminal behind the walls so that he suffers the sentence as pronounced by the counts. Thus the functions of the police officer to ensure the attendance of the witnesses at the trial of a case is a statutory responsibility. The police officer cannot avoid this responsibility. His responsibility is not over as soon as he completed the investigation and submitted the police report i.e. charge-sheet. But his responsibility continues till the conclusion of the trial to see that no evidence in the case is lost by means of gaining over a witness or otherwise, which may happen in case of delay in holding trial of a case.

6 14. In some cases we are compelled to enlarge some accused on bail against whom there are serious allegations of non-bailable offence as they are in custody for years together for non appearance of witnesses. Therefore, we are of the opinion that this eventuality can be avoided if the investigating agencies are sincere and honest to their responsibilities. In this case the learned Metropolitan Additional Sessions Judge exhausted all formalities required by law for attendance of witnesses including writing letters by name to the Secretary. Ministry of Home Affairs and the Inspector General of Police. In spite of issuance of such processes, it is unfortunate to note that the police officer who lodged the first information report did not appear in court for over a year. There are other police officers against whom also processes were issued but none of them showed any interest to perform their responsibilities. In the premises aforesaid we direct/instruct the Police Authority to issue guide lines/instructions to the Investigating Officers in the light of the observations made above, so that they shall take appropriate steps for production of witnesses in court at the time of trial of the cases investigated by them. In the result, the Rule is made absolute. Mr. Qamrul Islam, learned public prosecutor is hereby relieved of the responsibility as public prosecutor in Sessions Case No Of We direct the Solicitor, Law, Justice, and Parliamentary Affairs. Solicitor Wing, and the Deputy Commissioner, Dhaka to engage another efficient public prosecutor for conducting the prosecution of the case from among the Additional Public Prosecutors, Assistant Public Prosecutors and the Panel of Advocates appointed by the State for Dhaka District within 7 (seven) days from the date of receipt -of this judgment. We further direct the learned Metropolitan Additional. Sessions Judge, 5th Court. Dhaka to conclude the trial of the case expeditiously without allowing any adjournment to the parties unless for some reason he thinks proper to adjourn the hearing of the case to some other day. Let a copy of the judgment be communicated to the Inspector General of Police, Bangladesh. The office is directed to transmit the record along with a copy of the judgment by a special messenger.