Dhaka: The High Court on Wednesday issued a rule asking the government to explain within four weeks why mobile courts conducted by the executive magistrate should not be declared illegal.
Mobile court, which is conducted mainly at the instance of the executive magistrates has been regularised through the Mobile Court Act, 2009.
It also issued a rule upon the government to explain why the sections---5, 6 (1, 2, 4), 7, 8 (1), 9, 10, 11, 13 and 15 of the Mobile Court Act, 2009 should not be declared illegal.
The HC bench, comprising Justice Mirza Hossain Haider and Justice Anwarul Haque passed the order.
Kamruzzaman Khan, chairman of the Aesthetic Property Development Ltd, filed the writ petition on October 11 challenging the legality of the sections of the act- 5, 6 (1, 2, 4), 7, 8 (1), 9, 10, 11, 13 and 15. The Act contains 17 sections.
Section 5 of the Act empowers district magistrate and executive magistrates to hold mobile court. According to section 6(1) of the Act, the magistrate can only try a person if the culpability falls under the offences specified in the schedule of the Act and if the magistrate catches him/her red-handed and if he/she confesses to his/her crime. Section 6 (3), (4) and (5) provides that if the offence is not incorporated in the laws in the schedule or if it is more grievous in nature, then the matter would be referred to the formal court and the mobile court will cease the authority to try the offence.
In accordance with section 7(1), after taking cognisance, the magistrate will frame written charge against the offender and ask if he pleads guilty and, if the accused person refuses to confess, the magistrate asks for explanation. If such explanation seems to be satisfactory the magistrate may discharge him, otherwise the magistrate shall send the accused for formal trial in regular court.
The magistrate can punish by imprisonment or fine or both if the accused person confesses. Otherwise, he cannot punish any individual under this Act.
Section 8(1) of the Act puts a limitation that the mobile court cannot impose more than two years of imprisonment.
As per the provision of section 13, an aggrieved person can prefer an appeal to the district magistrate against the decision of an executive magistrate and to the sessions judge against the decision of district magistrate-a system of double check should there be any apprehension of arbitrary use of power.
It is the plenary legislative (Article 65 of the constitution of Bangladesh) power of the parliament of Bangladesh by dint of which it enacted the law, and, this law is to be obeyed so long as it remains valid. This law can be invalidated either by the Parliament or by the High Court Division of the Supreme Court on the ground of unconstitutionality.
The petitioner stated in the writ that the authority of executive magistrates to conduct the court is unconstitutional and conflicts directly with the milestone verdict of the Masdar Hossain case (Secretary, Ministry of Finance Vs Md Masdar Hossain, 20 (2002) BLD, AD) which restored the judiciary’s supremacy over executive authority of the state in judicial procedure.
The petitioner sought HC directive to issue a rule upon the government why the sections should not be declared illegal.
A mobile court earlier on September 14 convicted the petitioner for 30 days under the section 8 (1) of the building construction act 1952.
The HC bench also stayed the sentence and conviction of the petitioner for four months.
Source: theindependentbd.com
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