The High Court today (Tues, 13 Nov) passed the following order in relation to the Habeas Corpus application relating to the alleged abduction of one of the International Crimes Tribunal defense witness: 'Rejected as not pressed'.
[Read here about the abduction; here about the ICT response; and here about what was argued in the High Court'
So what does the order mean, and what happened in court?
When the matter came up before the court, Justice Naima said, 'I am going to pass an order'. Apparently since she did not say that she was going to pass a 'rule', to the defense lawyers in the court room sthis indicated that she was going to reject the application and not pass a rule.
Immediately, Barrister Rajjak got up and said, 'Since you are going to reject the application, I have two submissions. First that you allow me to take the application back from the court and secondly, that you pass an order as 'rejected as not pressed.'
Justice Naima said that since the case has been argued before the court at some length and we are about to give an order, we cannot give the application back. However she then agreed to pass an order that the application was 'rejected, as not pressed'.
What does that mean? That means that the defense lawyers can, if they so wish, go to another court with the same or similar application - though they must inform the court about this court order. That is to say that they get a second bit of the cherry!.
Comment
Courts giving orders of this kind - either by allowing the petitioner to take the application back or by passing orders of 'rejected as not pressed' - which allow petitioners to argue the matter again before a court that they consider may be more favorable to their application is common practice in the High court of Bangladesh. Lawyer of all kinds do it, and courts allow them to do so. It is common practice, and Barrister Razzak just took advantage of it.
However it is extraordinary that the courts allow this practice. On Sunday over a period of more than an hour this court heard both the petitioner and the Attorney General. It was a full and proper hearing. So the court should give its order - whether it is favorable or not to the applicant. And Rajjak can appeal it before the appellate division, if the order goes against him.
No doubt Rajjak was thinking that it could take a long time before the matter was heard in the appellate division, and perhaps for his client what he did was the best thing as it gives an opportunity to argue the matter before another court which might deal with it more favorable. But this is not how the High Court should operate.
Showing posts with label Habeas Corpus. Show all posts
Showing posts with label Habeas Corpus. Show all posts
Tuesday, November 13, 2012
Habeas corpus argument in the High Court
On 6 November a Habeas Corpus petition was filed in the High Court relating to the alleged abduction of the defense witness Shukho Ranjan Bali by law enforcement agencies the day before. (A Habeas Corpus petition is a petition to 'seek the body' and is a long standing remedy available in common law countries to deal with unlawful state detention and alleged disappearance).
The full application can be read here.
Below are details of the oral arguments made by the international crimes tribunal defence lawyers (on behalf of the petitioner Abul Kalam Azad from Bhandaria in the District Pirojpur) and then those of the Attorney General.
The respondents in the petition were: the Ministry of Home Affairs, Inspector General of Police, Rapid Action Batallion, Superintendant of Police, Deputy Commissioner (Detective Branch), officer in charge of Shahbag Police station, the inspector general of prisons, the Superintendent and Jailer of Dhaka Central Jail and the Deputy Commissioner.
It was first taken up for hearing on the morning of Wednesday 7 November before the bench of Justice Naima Haider and the assistant judge Kurshid Alam Sarkar.
On the seventh when it came up, initially Naima questioned whether the application should be heard in her court since it involved detention and there was another court relating to these matters. Razzaq however argued that this was a constitutional matter and this court had jurisdicaiton over such issues. Justice Naima seemed to accept this. However, an Assisstant Attorney General told the court that the Attorney General was busy that afternoon, and so needed time. The High Court then said that the matter would come up for hearing on Sunday 11 November. Razzaq said that the matter needed to be heard immediately but the court confirmed that the hearing would be on Sunday. ‘First thing on Sunday,’ said Razzq, and the court agreed.
On Sunday morning, a lawyer from the AG’s office asked for the matter to be ‘passed over’ on the list as the Attorney General was busy on another matter. He subsequently came to the court at around 11.30 and asked for it to be heard in the afternoon and the court agreed.
Petitioner arguments
Below are details of the oral arguments made by the international crimes tribunal defence lawyers (on behalf of the petitioner Abul Kalam Azad from Bhandaria in the District Pirojpur) and then those of the Attorney General.
The respondents in the petition were: the Ministry of Home Affairs, Inspector General of Police, Rapid Action Batallion, Superintendant of Police, Deputy Commissioner (Detective Branch), officer in charge of Shahbag Police station, the inspector general of prisons, the Superintendent and Jailer of Dhaka Central Jail and the Deputy Commissioner.
It was first taken up for hearing on the morning of Wednesday 7 November before the bench of Justice Naima Haider and the assistant judge Kurshid Alam Sarkar.
On the seventh when it came up, initially Naima questioned whether the application should be heard in her court since it involved detention and there was another court relating to these matters. Razzaq however argued that this was a constitutional matter and this court had jurisdicaiton over such issues. Justice Naima seemed to accept this. However, an Assisstant Attorney General told the court that the Attorney General was busy that afternoon, and so needed time. The High Court then said that the matter would come up for hearing on Sunday 11 November. Razzaq said that the matter needed to be heard immediately but the court confirmed that the hearing would be on Sunday. ‘First thing on Sunday,’ said Razzq, and the court agreed.
On Sunday morning, a lawyer from the AG’s office asked for the matter to be ‘passed over’ on the list as the Attorney General was busy on another matter. He subsequently came to the court at around 11.30 and asked for it to be heard in the afternoon and the court agreed.
Petitioner arguments
In the afternoon, Barrister Razzaq spoke on behalf of the petitioner. He made the following arguments:
- He had been coming to the tribunal for the last year and the only day that the gate has been locked and lawyers have been asked to get out of their vehicles was on the 5 September. On every other day the vehicles have gone outside the tribunal entrance and lawyers have bene dropped off there.. The only explanation for this was that ‘the law enforcement agencies were waiting to arrest someone’ Only the defense lawyer Mizanul Islam, who is in a wheelcahir and I were allowed to stay in the cars. Everyone else had to get out. ‘This speaks volumes’
- Bali came to court the day before as well.
- The car that abducted Bali came from inside the tribunal. It was a plan of the law enforcement agencies. They cannot deny it. A witness came to court in broad daylifht and was abucted. And it is the duty of the other side to explain what happened. Lord Avebury in his blog said that the incident had to be investigated..
- A defence lawyer went to file a General Diary entry with the police but they refused to accept it, and did not give any explanation.
- the incident happened shortly after 10. Soon after that we all mentioned what happened to the tribunal and as follow decided to file a GD entry. The least a lawyer can do is to file a GD entry. This is the kind of thing that is happening in the country now – GD entries are rfused. Why should the police refuse to accept the GD? What is the explanation. The Chief Law officer will explain why. My submission is that there is no earthly reason why they should refuse. It speak volumes .
- the detained person’s life is at stake. He lost his brother in 1971. He came to court to despose. Suddenly disappeared.
- article 32 of the constitution states that no person shall be deprived of life and liberty other than a court of law. His personal liberty has ben taken away from his otherwise that in accordinace with law. But the other side simply does not see, does not hear.
- article 31 could have been enough protection , but Article 32 was included in the construction to provide an abundance of caution.
- his wife is bedriddren, with very young children.
- There is a duty upon the other side to bring him to court within 24 hours, But this has not been done. His lbertiy has abeen taken away, but there is no liability. All we are asking for is a rule. Nothing more, nothing less. This is one of those caes where the court should give a rule.
The Attorney General response
- It has not been seen that this witness has been kidnapped. This is a wrong application. What has been seen is a mob attacking police officers. This is not a bona fide application, but a male fide one. It is an attempt to stop the trial, to make the trial questionable, and that is the reason why some lawyers came with this application.
- First point. If you look at the words of section 102(b)(1), it is clear that one should not come to the court when there is disputes on matters of fact. The court must be satidsgey that person is in custody, and for that reason, , in the past the bar used to fiel habeas corupus along with an ordre of detention. You have to show that prima facie the person is in custody. There is here no t paper for the arrest or detntion of this person. So if there is no proof or evidence that party has been detained by the law enforcement agencies, how will this court take cognisance that he is in custody.
- There is no paper that says he is in cusody. So if not in custody, then petition can be entertained. So can this court et involved when there are disputes over matters of fact.
He then read out various parts of the petition, and also the press cuttings annexed.
- I want the court to note that in the application the petitioner says that the defence case was forcefully closed. I take a serious objection to this word. The use of the word is contemptuous.
- the whole alleged incident is ‘absolultely ridiculous. The only witnesses are the defence lawyers.
- he kept on emphasising as he read the petition that the application contained matters of disputed fact. ‘Can court decide all these things. In what jurisdiction’
- he pointed out that the application says that the family went around police stations trying to find Bali. ‘Keep in your mind that they said family here’.
- he pointed out the defence informed the tribunal who passed an order. He said that he went to tribunal. Section 8 of the International Crimes Tribunal says that the tribunal has the power to pass any order in any form. When they have gone to the tribunal and thr tribunal does not pass order, cant just take the matter to this court. When given notice to the tribunal and the person is a witness to that tribunal, how can he come to this court.
- In any case no order of the tribunal can be challenged, except that of conviction ot the appellate division. He has bene infront of the tribunal. The tribunal did not act according to their prayer . So the matter ends there.
- I want to know whether there is a any genuine case here. The petition is absolutely male fide.
- and who is the petitioner Azad. He does not come from the same police station. And Azad is a muslim whilst Bali is a Hindu
- why did they file this application. They want to make the trial controversial, and as regards this have held a press conference on the 5th. The press conference on the 5th at the press club was televised. Abdur Razak was present. . So they hold a press conference againt the trial and then come to this court to make this petition which is undeniable.
- Look at the Daily Star on the November 7th. Look how the police are taking a beating.
- The tribunal here is following procedure. Section 10 lays down how the trial should be organised. The summing up has been started on the 5th so there ws no question of presentation of witness. There would be summing up and then judgement.
- Look what Tajul Islam said accusing the tribunal of involvment in the abduction. ‘Is the application bona fide, absoulutey not.’
- It is clear that the lawyers went to request an order from the tribunal. The tribunal looked into the matter and there was investigation by chief investigator. After being satisfied that nothing happened, no order was passed. He cannot now go to any court. He must go to the appellate division. The is a device only to make the trial controversial, that this trial is not fair. They held a press conference. They are determined to make the trial controversial.
- In this matter there is no paeper to show the court that the person has been detained., and so court may not pass an order
- the issue of the General Diary– this is another question of fact. Whether tye went there etc. If the GD really was not filed then they would have immediately held a press conference, and the fact that they did not should not not true.
- this is nothing but to make a show before the countryand the media that they are not being treated fairly
Petitioner response
The fact that there was violence is an entirely seprate matter. Even if there was violence, it has nothing to do with this case. So the first point of the AG is misconceived.
The court has issued rules when people have been abducted. [He passed the court two orders from the court] And after the issuing of the rule in the case of Golam Mutoza, he was released. So this is not without precedent.
Went to the tribunal only as a matter of curtesy.. I have to. It is our duty. WE did not challenge, we brought the matter to his attention. He did not pass an order, and rightly so and this court and this court alone has jurisdiction. So this point is misconceived.
We did not hold a press confrence on the 5th, only a press briefing outside the court. The press conference was on the 6th
Both the detainee and the petitioner are both in the distrct of Priojpur. The constituion say that ‘any person’ can file a petition.
The closing arguments in the case only happened at 2pm. Not at 10.30. We had an application that day on whether we could examine him.
Yes there was a walkout of judges but it was not a boycott.
Yes, contempt proceedings have been issued, but that is very diffcent from saying that he was held in contempt
The learned friend could not show why a rule should not be issued.
- He had been coming to the tribunal for the last year and the only day that the gate has been locked and lawyers have been asked to get out of their vehicles was on the 5 September. On every other day the vehicles have gone outside the tribunal entrance and lawyers have bene dropped off there.. The only explanation for this was that ‘the law enforcement agencies were waiting to arrest someone’ Only the defense lawyer Mizanul Islam, who is in a wheelcahir and I were allowed to stay in the cars. Everyone else had to get out. ‘This speaks volumes’
- Bali came to court the day before as well.
- The car that abducted Bali came from inside the tribunal. It was a plan of the law enforcement agencies. They cannot deny it. A witness came to court in broad daylifht and was abucted. And it is the duty of the other side to explain what happened. Lord Avebury in his blog said that the incident had to be investigated..
- A defence lawyer went to file a General Diary entry with the police but they refused to accept it, and did not give any explanation.
- the incident happened shortly after 10. Soon after that we all mentioned what happened to the tribunal and as follow decided to file a GD entry. The least a lawyer can do is to file a GD entry. This is the kind of thing that is happening in the country now – GD entries are rfused. Why should the police refuse to accept the GD? What is the explanation. The Chief Law officer will explain why. My submission is that there is no earthly reason why they should refuse. It speak volumes .
- the detained person’s life is at stake. He lost his brother in 1971. He came to court to despose. Suddenly disappeared.
- article 32 of the constitution states that no person shall be deprived of life and liberty other than a court of law. His personal liberty has ben taken away from his otherwise that in accordinace with law. But the other side simply does not see, does not hear.
- article 31 could have been enough protection , but Article 32 was included in the construction to provide an abundance of caution.
- his wife is bedriddren, with very young children.
- There is a duty upon the other side to bring him to court within 24 hours, But this has not been done. His lbertiy has abeen taken away, but there is no liability. All we are asking for is a rule. Nothing more, nothing less. This is one of those caes where the court should give a rule.
The Attorney General response
- It has not been seen that this witness has been kidnapped. This is a wrong application. What has been seen is a mob attacking police officers. This is not a bona fide application, but a male fide one. It is an attempt to stop the trial, to make the trial questionable, and that is the reason why some lawyers came with this application.
- First point. If you look at the words of section 102(b)(1), it is clear that one should not come to the court when there is disputes on matters of fact. The court must be satidsgey that person is in custody, and for that reason, , in the past the bar used to fiel habeas corupus along with an ordre of detention. You have to show that prima facie the person is in custody. There is here no t paper for the arrest or detntion of this person. So if there is no proof or evidence that party has been detained by the law enforcement agencies, how will this court take cognisance that he is in custody.
- There is no paper that says he is in cusody. So if not in custody, then petition can be entertained. So can this court et involved when there are disputes over matters of fact.
He then read out various parts of the petition, and also the press cuttings annexed.
- I want the court to note that in the application the petitioner says that the defence case was forcefully closed. I take a serious objection to this word. The use of the word is contemptuous.
- the whole alleged incident is ‘absolultely ridiculous. The only witnesses are the defence lawyers.
- he kept on emphasising as he read the petition that the application contained matters of disputed fact. ‘Can court decide all these things. In what jurisdiction’
- he pointed out that the application says that the family went around police stations trying to find Bali. ‘Keep in your mind that they said family here’.
- he pointed out the defence informed the tribunal who passed an order. He said that he went to tribunal. Section 8 of the International Crimes Tribunal says that the tribunal has the power to pass any order in any form. When they have gone to the tribunal and thr tribunal does not pass order, cant just take the matter to this court. When given notice to the tribunal and the person is a witness to that tribunal, how can he come to this court.
- In any case no order of the tribunal can be challenged, except that of conviction ot the appellate division. He has bene infront of the tribunal. The tribunal did not act according to their prayer . So the matter ends there.
- I want to know whether there is a any genuine case here. The petition is absolutely male fide.
- and who is the petitioner Azad. He does not come from the same police station. And Azad is a muslim whilst Bali is a Hindu
- why did they file this application. They want to make the trial controversial, and as regards this have held a press conference on the 5th. The press conference on the 5th at the press club was televised. Abdur Razak was present. . So they hold a press conference againt the trial and then come to this court to make this petition which is undeniable.
- Look at the Daily Star on the November 7th. Look how the police are taking a beating.
- The tribunal here is following procedure. Section 10 lays down how the trial should be organised. The summing up has been started on the 5th so there ws no question of presentation of witness. There would be summing up and then judgement.
- Look what Tajul Islam said accusing the tribunal of involvment in the abduction. ‘Is the application bona fide, absoulutey not.’
- It is clear that the lawyers went to request an order from the tribunal. The tribunal looked into the matter and there was investigation by chief investigator. After being satisfied that nothing happened, no order was passed. He cannot now go to any court. He must go to the appellate division. The is a device only to make the trial controversial, that this trial is not fair. They held a press conference. They are determined to make the trial controversial.
- In this matter there is no paeper to show the court that the person has been detained., and so court may not pass an order
- the issue of the General Diary– this is another question of fact. Whether tye went there etc. If the GD really was not filed then they would have immediately held a press conference, and the fact that they did not should not not true.
- this is nothing but to make a show before the countryand the media that they are not being treated fairly
Petitioner response
The fact that there was violence is an entirely seprate matter. Even if there was violence, it has nothing to do with this case. So the first point of the AG is misconceived.
The court has issued rules when people have been abducted. [He passed the court two orders from the court] And after the issuing of the rule in the case of Golam Mutoza, he was released. So this is not without precedent.
Went to the tribunal only as a matter of curtesy.. I have to. It is our duty. WE did not challenge, we brought the matter to his attention. He did not pass an order, and rightly so and this court and this court alone has jurisdiction. So this point is misconceived.
We did not hold a press confrence on the 5th, only a press briefing outside the court. The press conference was on the 6th
Both the detainee and the petitioner are both in the distrct of Priojpur. The constituion say that ‘any person’ can file a petition.
The closing arguments in the case only happened at 2pm. Not at 10.30. We had an application that day on whether we could examine him.
Yes there was a walkout of judges but it was not a boycott.
Yes, contempt proceedings have been issued, but that is very diffcent from saying that he was held in contempt
The learned friend could not show why a rule should not be issued.
The Court said that judgment would be given on Tuesday, 13th November in the morning
Habeas Corpus written application to High Court
Below is the Habeas Corpus written application filed in court relating to the alleged abduction of one of the International Crimes Tribunal defense witnesses.
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.
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