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Executive Magistrates' Powers

Govt yet to reply to HC rule
Ashutosh Sarkar
The government is yet to place any reply to the High Court rule over empowerment of executive magistrates for performing judicial functions in the last 20 months.
In response to a writ petition, the HC on November 15,2009 issued the rule upon the government to explain why the amended rules of Criminal Procedure Code (CrPC) giving judicial powers to executive magistrates should not be declared illegal. The rule was made returnable within three weeks.
Deputy Attorney General ABM Altaf Hossain, who represents the government in this case, told The Daily Star that they will submit a reply to the rule before the HC during its hearing.
He said the HC bench led by
Justice AHM Shamsuddin Chowdhury Manik may hold hearing on the rule any day, as the matter has been enlisted in the cause-list of this bench for hearing.
“We will make a reply to the rule after getting instructions from the authorities concerned of the government," said the deputy attorney general.
Petitioner's counsel Manzill Musrhid said the government can place its arguments before the HC without submitting any written reply to its rule.
“We will place our arguments before the High Court during hearing on the rule that the amended rules of CrPC giving judicial powers to executive magistrates are illegal and unconstitutional," he said.
The parliament passed the CrPC (Amendment) Act, 2009 on April 7,
2009, incorporating the rules that allowed the government discretion to empower executive magistrates to take cognisance of offences, and the government issued a gazette notification on the act on April 8 the same year.
Human Rights and Peace for Bangladesh on November 15, 2009, filed the writ petition as a public interest litigation seeking a directive from the HC upon the government to cancel the amended CrPC rules.
The HC on the same day issued the rule, making secretaries to cabinet division, president's secretariat, prime minister's office secretariat, Jatiya Sangsad secretariat and law ministry as its respondents.
Manzill Murshid said that as per sections 145 to 147 of the amended CrPC, the executive magistrate decides issues of possession, grants
ad-interim injunction, appoints receiver, restores possessions and grants permanent injunction in the cases until the cases are settled by the courts of the judicial magistrate, which are judicial powers.
The amended CrPC rules, which empowered the executive magistrates to discharge judicial functions, are against the provisions of the constitution and the principles of the Supreme Court judgement in Masdar Hossain case, popularly known as Judiciary Separation Case, he said.
The executive magistrates were empowered to pass orders in the cases through the amendment of the CrPC, which only the judicial magistrates are entitled to do as per the provisions of the constitution and the SC directives in the judgment of Masdar Hossain case, he added.