To read about the oral hearing in the high court relating to this application which took place on 11 November 2012, see here.
1. That the petitioners is a citizen of Bangladesh having permanent residence in Bangladesh and is a service holder by profession. The petitioner is a friend of the detenue Shukho Ranjan Bali and thus he is keenly interested to secure the release of the detenue Shukho Ranjan Bali who is now in the custody of the law enforcing agencies ( the Respondent Nos. 2-5).
2. That the the detenu is a Bangladeshi Citizen and a carpenter by profession. Detenu is a member of a family which was victim of atrocities committed by the Paksitan Army in the Liberation War of Bangladesh in 1971. Detenu is an eye witness of the carnage where the Pakistan army torched their house in Pijojpur and brutally murdered his brother Bisha Bali. Detenu was originally listed as a Prosecution witness in connection with ICT-BD Case No.1 of 2011 now pending before the International Crimes Tribunal, Dhaka (hereinafter referred to as “the Tribunal”) against accused Allama Delwar Hossain Saydee. According to Count No. 10 in the formal charge submitted by the prosecution against Mr Saydee, the accused destroyed the Detenu’s house and killed his brother Bisha Bali in 1971.
3. That, the Detenu was not ready to support this false story of the Prosecution at the Tribunal and for this reason the Prosecution eventually did not produce him the Tribunal for deposition. Rather the prosecution claimed that he was unavailable and hiding in India. Relying upon this, the Tribunal accepted an unsigned statement of the Detenu purportedly to have been recorded by the Investigation Officer under section 19(2) of the International Crimes (Tribunals) Act 1973.
4. That the real fact is the Detenu was never hiding. The Detenu appeared in TV Interviews which was aired in several private TV channels. Videos of those interviews have been submitted to the Tribunal by the Defecne Team for the accused Mr Saydee (hereinafter referred to as “the Defence”) as Defence Materials marked as Defence Exhibit (ii). Copy of an interview of Detenu Shukho Ranjan Bali has been published in Daily Amar Desh on 06.11.2012 and has annexed hereto and marked as ANNEXURE-“A”.
5. That on 21.10.2012, the Defence filed an application before this tribunal to issue summon on the Detenu so that he can testify as Defence Witness. On 22.10.2012 Tribunal passed an order that it would not issue any summon, but the Defence was at liberty to bring him as Defence Witness. This is why Defence requested the Detenu and he came to give evidence as Defence Witness.
6. That on 23.10.2012, Tribunal forcefully closed Defence case after examining Defence Witness No. 17 and fixed 5th November 2012 for summing up of the Prosecution. On 31.10.2012 Defence filed another application to allow Detenu to give evidence before commencement of summing up and 05.11.2012 was fixed for hearing this application. If the application was allowed then the Detenu could testify as Defence Witness. This is why Detenu came with Defence Counsels . Defence’s application is pending before the Tribunal.
7. That on 5th November 2012 at around 10 AM, the Detenu Mr Shukho Ranjan Bali was approaching towards Tribunal in the car of the senior defence counsel Mr Mizanul Islam when uniformed policemen stopped their car for security check at the entrance of the Tribunal. Senior Defence Counsel Mr Manjur Ahmed Ansari and Defence Counsel Mr Hasanul Banna Shohag was also in the car along with Mr Islam and the Detenu. The uniformed police informed that they have instruction not allow anyone except designated lawyers to go inside the Tribunal Building. Defence counsel Mr Mizanul Islam tried explaining that Shukho Ranjan Bali is a Defence Witness, but the uniformed police men made all of them to get down from the car. Only Advocate Mizanul Islam who is a physically disabled person and can only move around in Wheel Chair was allowed to go inside with the car. As soon as they were out, a group of plain clothed men carrying firearms approached them and grabbed defence witness and tried to whisk him away. Defence Counsel Advocate Hasanul Banna Shohag tried to prevent them, the plain clothed personnel warned him not to intervene as they are from ‘Detective Branch’ and they have instruction to take Shuko Rangan Bali to ‘head office’ for interrogation. Advocate Hanasul Banna Shohag continued to try to prevent them and tried to draw the attention of the uniformed policemen who were silently observing the unfolding event. A this point the plain cloth security personnel hit Mr Bali across his face and instructed him to get into a while pick-up which has ‘Police’ written on its side in fluorescent stickers. As soon as Mr Bali got inside the vehicle, it drove away. All this took place in front of uniformed policemen who did not make any attempt to intervene. Copy of news published in Daily Amar Desh dated 06.11.2012 which shows the Police vehicle and with the Detenu inside has been annexed hereto and marked as Annexure – “B”. Copies of the news papers reports dated 06.11.2012 regarding the incident has been reported are annexed here to and marked as Annexure “B(1)-B(3)”.
8. That the Counsel for the Accused immediately imformed the Tribunal about the incident and prayed that the Tribunal issue an order to produce the Detenu in the tribunal. The Tribunal merely ‘requested’ the Chief Prosecutor and Chief of the Investigation Agency to ‘look into the matter’.
9. That at around 1.05 PM, the Chief Prosecutor Mr Golam Arif Tipu reported before the Tribunal that he and Chief Investigator gathered all Security Officers and enquired them whether any witness was abducted. All the Police officers denied seeing any such thing.
10. That Defence Counsel Tariqul Islam attempted to file a G.D. with an application signed by the Senior Dfence Counsel Mr Mizanul Islam with Shahbagh Police Station but the police refused to accept G.D and refused to give any explanation for such refusal. Copy of the said application to register G.D. dated 05.11.2012 is annexed hereto and marked as Annexure “C”.
11. That the family members and friends of the detenu searched the detenu in the different Police Stations but could not trace out the detenu. Then petitioner and other family members waited in the Court of Chief Metropolitan Magistrate, Dhaka and Chief Judicial Magistrate, Dhaka with a hope that the detenu might be produced before the Court but till today the detenu has not been produced before the Court.
12. That the law enforcing agencies did not produce him in Court within the stipulated period of 24 hours of his arrest and did not inform the whereabouts of the detenu in any manner to any one.
13. That it is stated that the petitioner is deeply concerned that the law enforcing agencies by abusing and misusing their executive power have been torturing the detenu inhumanly holding him in a secret place without showing him arrested in a malafide way and without producing him before any court of Magistrate where the detenu can recourse of due process of law.
14. That it is stated and submitted that the Respondents by arbitrary exercising their statutory power arrested the detenu and kept him under their custody in an unlawful manner and without any lawful authority and as such they are liable to be directed to produce the detenu before this Hon’ble Court so that this Court may satisfy itself that the detenu is not being held in custody without any lawful authority or in an unlawful manner.
15. That it is submitted that the detenu could not make any representation against the illegal detention as the Respondents did not supply any formal order or ground of detention and did not even supply the whereabouts of the detenu and that is why the petitioner could not take any recourse of any legal proceedings and as such he got no option but to invoke writ jurisdiction of this Hon’ble court in order to secure release of the detenu from illegal, unlawful and secret detention.
16. That it is submitted that the actions of the Respondents are highly malafide as they have arrested and detained the detenu unlawfully and without following any due process of law and as such a writ of habeas corpus may be issued against them for the ends of justice.
17. That it is submitted that the Respondents are responsible persons of the government performing functions with the affairs with the Republic and they are duty bound to ensure security and safety of life and property of the property of the detenu and to ensure his fundamental rights as enshrined in the constitution but in the present case they have grossly violated the cardinal principles of fundamental rights of the detenu by detaining him in custody without any due process of law.
18. That it is submitted that the respondents deprived the detenu from enjoying the protection of law and to be released in accordance with law which is an inalienable right of the detenu and as such the action of the respondent in detaining the detenu is violative of Article 31 and 32 of the Constitution of the Peoples Republic of Bangladesh.
19. That it is submitted that the detenu was arrested by the members of the law enforcing agencies without any warrant of arrest, they did not inform the reason of arrest and did not produce him before nearest Magistrate which is gross violation of Article 33 of Constitution.
20. That it is submitted that the respondents by their actions also violated the fundamental rights as guaranteed under Articles 36, 38 and 39 of the Constitution.
21. That it is submitted that it is the reasonable apprehension of the petitioner and his deep concern is that since the respondents are not supplying any information regarding the detenu, nor producing him before any Court , the detenu may have been killed or inhumanly tortured by them and as such as the guardian of the constitution this Court may direct the Respondents to produce detenu before this Hon’ble Court at once.
22. That it is stated that in similar situation the Hon’ble High Court Division issued Rule in Writ Petition No. 5660 of 2010 and as such Rule may be issued in the present case.
23. That after the disappearance of the Detenu, the family members of the Detenu are fearful that if they become petitioner of this case, then they might be subjected to harassment and even forced disappearance. Hence, Abul Kalam Azad is the Petitioner who is not a family member but a close friend of the Detenu.
24. That finding no other equally efficacious remedy the petitioner begs to move this application on the following amongst other
GROUNDS
I. For that the Respondents by arbitrary exercising their statutory power arrested the detenu and kept him under their custody in an unlawful manner and without any lawful authority and as such they are liable to be directed to produce the detenu before this Hon’ble Court so that this Court may satisfy itself that the detenu is not being held in custody without any lawful authority or in an unlawful manner.
II. For that the detenu could not make any representation against the illegal detention as the Respondents did not supply any formal order or ground of detention and did not even supply the whereabouts of the detenu and that is why the petitioner could not take any recourse of any legal proceedings and as such he got no option but to invoke writ jurisdiction of this Hon’ble court in order to secure release of the detenu from illegal, unlawful and secret detention.
III. For that the actions of the Respondents are highly malafide as they have arrested and detained the detenu unlawfully and without following any due process of law and as such a writ of habeas corpus may be issued against them for the ends of justice.
IV. For that the Respondents are responsible persons of the government performing functions with the affairs with the Republic and they are duty bound to ensure security and safety of life and property of the property of the detenu and to ensure his fundamental rights as enshrined in the constitution but in the present case they have grossly violated the cardinal principles of fundamental rights of the detenu by detaining him in custody without any due process of law.
V. For that the respondents deprived the detenu from enjoying the protection of law and to be released in accordance with law which is an inalienable right of the detenu and as such the action of the respondent in detaining the detenu is violative of Article 31 and 32 of the Constitution of the Peoples Republic of Bangladesh.
VI. For that the detenu was arrested by the members of the law enforcing agencies without any warrant of arrest, they did not inform the reason of arrest and did not produce him before nearest Magistrate which is gross violation of Article 33 of Constitution.
VII. For that the respondents by their actions also violated the fundamental rights as guaranteed under Articles 36, 38 and 39 of the Constitution.
VIII. For that it is the reasonable apprehension of the petitioner and his deep concern is that since the respondents are not supplying any information regarding the detenu, nor producing him before any Court, the detenu may have been killed or inhumanly tortured by them and as such as the guardian of the constitution this Court may direct the Respondents to produce detenu before this Hon’ble Court at once.
IX. For that in similar situation the Hon’ble High Court Division issued Rule in Writ Petition No. 5660 of 2010 and as such Rule may be issued in the present case.
Wherefore, it is most humbly prayed that your Lordships may graciously be pleased to
A. Issue a Rule Nisi calling upon the Respondents to show cause as to why the Respondents shall not be directed to produce the Detenu Shukho Ranjan Bali before the Hon’ble Court so that it may satisfy itself that he is not being held in the custody without lawful authority or in an unlawful manner,
B. make the Rule absolute after hearing the parties considering the cause shown, if any,
C. direct the Respondents to produce the detenu before the Court within 24 hours.
D. and/ or pass such other or further order or orders as your Lordships may deem fit and proper.
You have mentioned the accused name as "Allama Delwar Hossain Sayeedi. "Allama" is an academic title given to someone who has achieved a doctoral degree in Islamic/religious studies. Mr. Sayeedi's educational background includes only an 'Alim' degree (12 th grade graduation). Calling him Allama is a factual error.
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