& çâÌæÚUæð´ ·¤è ¥ôÚU Îð¹Ùæ ÁæÚUè ÚU¹ð´ ¥ÍæüÌ ¥ÂÙð ÜÿØ ÂÚU ŠØæÙ ÚU¹ð´Ð ãæÚU Ù ×æÙð´, €UØô´ç·¤ ·¤æ× ·¤ÚUÙð âð ¥æÂ·¤ô ©gðàØ ·¤è Âýæç# ãôÌè ãñ ¥õÚU ÁèßÙ ·¤æ ¹æÜèÂÙ ÎêÚU ãôÌæ ãñÐ ÖÜð ãè ÁèßÙ ×ð´ ç·¤ÌÙè Öè ·¤çÆÙæ§ü €UØô´ Ù ¥æ°, çÁ™ææâæ ¥õÚU ©ˆâæã ÕÙæ° ÚU¹ð´Ð ŠØæÙ ÚU¹ð´, ÜÿØ ã×ðàææ ¥æÂ·Ô¤ Âæâ ãôÌð ãñ´ çÁ‹ãð´ ÂæÙð ·Ô¤ çÜ° ÂýØæâ ¥æÂ ·¤Öè Öè àæéM¤ ·¤ÚU â·¤Ìð ãñ´Ð

LAW analysis

Bail, rule and stay orders: People's perception and reality

Barrister Md. Abdul Halim
THE jurisdiction of the High Court Division may be invoked by way of some petitions or applications and the most available of these are writs, criminal miscellaneous petitions under section 561A of CrPC, revision applications etc.
Usually when these motion applications are heard for the first time, the petitioner’s lawyer basically prays that the government order, lower court proceeding, judgment, order or sentence challenged in the petition be stayed and/or rule be issued. 'Stay' means suspension of opera-tion of the proceed-ing/order/action/judgment/sent ence challenged in the petition till a specified period or till hearing as specified by the court.
On the other hand, 'issuing rule means asking the respondents to show cause or explain the reasons why their proceed-ing/order/action/judgment/sent ence will not be declared illegal. If the petitioner’s lawyer can substantiate a prima facie case in his favour that there was violation of law in the government order, or violation in the procedure of investigation or trial or proceeding in the lower court, the High Court usually issues a rule against the respondents and also grants a stay order and if the matter is a criminal one and the accused person is in jail, in that case granting bail to the accused person is also within the jurisdiction of the court. Issuing rule, stay order and granting bail, of course, do not mean the end of the matter; this is just the primary stage of the judicial proceeding in the Supreme Court.
The respondents will have to
answer the rule by way of affidavit; they may also appear in the court to vacate the stay order if there are convincing reasons for that. After answers are given, the matter will be heard on merit by the apex court, although it usually takes % years as there are huge backlog of pending cases in the apex court.
Ordinary people's perception and reality
From ordinary people's point of view, it is sometimes awkward in many cases to see that verdict in favour of the prosecution is obtained in die trial court but overturned or stayed in the High Court on its first move be it by way of writ, quashing application, revision or appeal. It is to be borne in mind that the general public might perceive the apex court as a forum of justice but the term 'justice' is not sometliing as ordinary people might often perceive. Justice is to be done and served within the four corners of law and the judges themselves cannot act going beyond the law. Very technically we call "law is blind”; we both judges and lawyers also do wear black gowns and coats. This also
signifies that "law is blind”. Why?
There are two fundamental principles behind it: First, law is blind in the sense that the court and the judges cannot go beyond the evidences produced in the court to prove or disprove the matter in question. Once evidences are produced, be it either by way of testimony of witnesses or material evidences during the trial process, the judge has to come up with the verdict strictly in accordance with the value and warrants of those evidences; and the superior courts are also bound by those evidence and they have togive verdict or decision in accordance with the relative strengths and weaknesses of those evidence irrespective of the fact that it may engender public concern.
Second, alongside the evidences there is another yardstick to be followed by the superior courts in upholding or rejecting a lower court proceeding or judgment; and this is the strict compliance with every steps or procedure of law while conducting investigation or trial of the matter in question. If it is a criminal matter and there is slightest violation in compliance with the law and its procedure during trial or investigation. the superior court will have no other option but to stay the proceeding or judgment and finally dismiss or quash the matter at the end of the final hearing.
One eleven, mass arrest and now bail and stay by the high court
In the wake of one-eleven incident with the takeover of power by the present caretaker government the mass arrest of political bigwigs who have hitherto been infamous for their corruption and misdeed as public servants and their subsequent prosecution by special courts in corruption charges have eased public anger in the sense that no one is above the law. However, this easing concern has suddenly turned out to be a matter of lull and gush among general public in the wake of mass granting of bail and order of stay of proceeding or judgment of the trial court by the apex court.
As I've already mentioned, the reasons lie in the two fundamental principles enunciated just above. It was at the very beginning of this process that whispers were in the air that this was not the proper net to catch these bigwigs. The laws under the Emergency Ordinance and Emergency Power Rules and subsequent amendments to the anti-corruption laws under which these bigwigs were arrested and tried have been attacked in the court as illegal and unconstitutional and hence all trials and prosecution under these laws would be illegal. It is fundamental norm of constitutional as well as criminal law that all persons will have right to get protection against expost facto law and this is guaranteed under Article 35(1) of our constitution.
This means that a person cannot be convicted of an offence except for violation of a law in force at the time of the commission of the act charged as offence. Clause 1 of Article 35 also provides that no person shall be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. Even if we assume that all procedure in the laws was duly followed, still the apex court has jurisdiction to stay proceeding and conviction under these provisions of the constitution.
Why did the trial court do the trials then? Well, all these laws are still valid laws as they have not yet been declared by the apex court illegal or unconstitutional and the trial court judges cannot ignore the laws made by the government of the day. When a criminal case is brought before the trial court after investigation and charge-sheet, it is incumbent upon the trial court to start tried as per law and there is little scope to see whether all procedure in the investigation and filing the case was followed.
This is mainly because the judges in our country have to follow adversarial system as opposed to inquisitorial system followed in civil legal system. Under adversarial or common law system judges are to play an impartial role and have little jurisdiction to interfere with the process of investigation by the state.
The ground works for a successful conviction under a criminal law mainly depend upon the police and investigation authorities and if they either accidentally or intentionally or being persuaded by any party manipulate or violate rules with regard to investigation or prosecution, it is obvious that in the long run the conviction might not be upheld in the apex court.
The writer is advocate, the Supreme Court of Bangladesh.