Jurisdiction of the Criminal Bench of the High Court Division in deciding Constitutional matters

The Court cannot fold its hand in despair and declare 'judicial hands off'. So long as the question arises whether an authority under the Constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a mala fide one or the order has been passed on some extrane­ous consideration or how far the order is fair and reasonable it can certainly be examined and decided by the Court. The Court cannot be debarred to examine the decision making process and the cor­rectness of the decision itself……………………………..(26)

Though the Criminal Bench of the High Court Division has no power to deal with the constitutional matters, but where the petitioner has sought direction to give effect the order of pardon remitting his sen­tence, it cannot fold its hands off and shut its eyes from examining the order of the Ministry of Home Affair's to remit the sentence of the petitioner……………(28)

Fugitive from justice

A man who seeks justice from the Court of law must come before the Court to agitate his grievance and must surrender first to the process of justice, otherwise he remains to be fugitive from justice and could not seek aid or assistance of the process of justice in order to claim right of audience against the process of the Court issued against him . . a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court.………………….(34 & 38)

The Court cannot direct the President how he is to exercise the power under Article 49 of the Constitution. Similarly, the Court also can not direct the Government how they exercise the power under section 401 of the Code of Criminal Procedure. But the action of the President or the Government, as the case may be, must be based on some rational, reasonable, fair and relevant principle which is non discriminatory and it must not be guided by any extraneous or irrelevant con­siderations. It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or mala fide and ordinarily, guide­line for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unrea­sonable, there is an abuse of power……………………………….(40)

The Constitution of Bangladesh, 1972, article 49

Materials to be supplied with the application of pardon

When a convict seeks pardon from the President or the Government he must supply the following mate­rials with the application for pardon; namely -

i) the First Information Report and Police Report;

ii) the evidence;

iii) Judgment of the trial Court and appel­late Court, if any;

iv) information whether during trial or appeal the convict was on bail or in custody or on absconsion;

v) how long the convict is in custody after conviction and what actual peri­od of sentence he has served;

vi) whether the convict is an accused or convicted in any other case or cases.

In addition to the above materials, the authority concerned has to collect a report from Jail authority about the conduct and behavior, when the convict was in jail………………………….(48 & 49)

It is presumed that the President and the concerned authorities of the Government are well conversant with the law that if a fugitive from law is given pardon knowing his status then the exercise of power under Article 49 of the Constitution or section 401(1) of the Code of Criminal Procedure certainly be arbitrary, mala fide, unreasonable, irrational and improper and such exercise of power is against the principle of the rule of law and an abuse of the power. If the President or the Government given such indulgence to a fugitive, ignoring and avoiding the direction of the Court and allow the fugitive to approach him/them straight and give him pardon exercising extraordinary power, a day will come when the Criminal administration of justice certainly be collapsed. In view of the princi­ple of rule of law the Court cannot approve such exercise of power, in favour of a fugitive, which is absolutely mala fide, arbitrary and unreasonable. Fairness, reasonableness and bona fide are the essence of the rule of law……………………………….(53)

The Registrar of trademarks shall not exercise any power vested in him by the Act or Rules adversely to any party duly appeared before him without giving the parties concerned an opportunity of being heard.