PRACTICE AND PROCEDURE IN THE SUPREME COURT OF BANGLADESH

PRACTICE AND PROCEDURE IN THE SUPREME COURT OF BANGLADESH

SUPREME COURT

To Practice in the High Court Division as well as in the Appellate Division of the Supreme Court of Bangladesh which is the highest Court of the country, you shall have to be acquainted with at first the relevant laws in force in the country High Court Rules and also to have got much skills in the field of English. Because all the applications, petitions, Memo of appeals. judgements and orders etc. are to be written in English. Besides, in case of Criminal and Civil matters everyone who are interested to practice in the Supreme Court of Bangladesh, shall have to gather atleast basic knowledge of the Lower Courts.

[ PRACTICE AND PROCEDURE IN THE SUPREME COURT OF BANGLADESH ]

PRACTICE AND PROCEDURE IN THE SUPREME COURT OF BANGLADESH

The Supreme Court of Bangladesh is the Highest Court of the Country which have got two division-one is High Court Division and another is Appellate Division. To the general people High Court Division is known as High Court of Bangladesh and Appellate Division is known as Supreme Court of Bangladesh. Article 94 to Article 112 of the Constitution of the People’s Republic of Bangladesh is dealt with the Establishment of Supreme Court, Appointment and tenure of Judges of the said Honourable Court, Jurisdiction and Powers of High Court Division and Appellate Division etc. which runs as follows:-

1. Establishment.

There shall be a Supreme Court of Bangladesh (to be known as the Supreme Court of Bangladesh) comprising the Appellate Division and the High Court Division.

The Supreme Court shall consist of the Chief Justice to be known as the Chief Justice of Bangladesh, and such number of other Judges as the President may deem it necessary to appoint to each division.

The Chief Justice, and the Judges appointed to the Appellate Division, shall sit only in that division, and the other Judges shall sit only in the High Court Division.

Subject to the provisions of this Constitution the Chief Justice and the other Judges shall be independent in the exercise of their judicial functions.

2. Jurisdiction and Powers of High Court Division.

Jurisdiction :

The High Court Division shall have such original, appellate and other jurisdictions, powers and functions as are or may be conferred on it by this Constitution or any other law.

PRACTICE AND PROCEDURE IN THE SUPREME COURT OF BANGLADESH

Powers :

(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution.

(2) The High Court Division may, it satisfied that no other equally efficacious remedy is provided by law

(a) on the application of any person aggrieved, make an order

(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or

(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority. has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order

(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner, or

(ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.

(3) Notwithstanding anything contained in the foregoing clauses, the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

(4) Whereon an application made under clause (1) or sub-cluse (a) of clause (2), an interim order is prayed for and such interim order is likely to have the effect of –

(a) prejudicing or interfering with any measure designed to implement any development programme, or any development work, or

(b) being otherwise harmful to the public interest, the High Court Division shall not make an interim order unless the Attorney-General has been given reasonable notice of the application and he (or an Advocate authorised by him in that behalf) has been given an opportunity of being heard, and the High Court Division is satisfied that the interim order would not have the effect referred to in sub-clause (a) or sub-clause (b).

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(5) In this article, unless the context otherwise requires, “person” includes a statutory public authority and any Court or tribunal, other than a Court or tribunal established under a law relating to the defence services of Bangladesh or any discipline force or a tribunal to which article 117 applies.

3. Jurisdiction of Appellate Division :

(1) The Appellate Division shall have jurisdiction to hear and appeals from judgments, decrees, orders or sentences of the High Court Division.

(2) An appeal to the Appellate Division from a judgement, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division-

(a) certifies that the case involves a substantial question of law as to the interpretation of this Constitution; or

(b) has sentenced a person to death or to imprisonment for life; or

(3) Subject to any rules made under this article the Chief Justice shall determine which judges are to constitute any Bench of a division of the Supreme Court and which judges are to sit for any purpose.

(4) The Chief Justice may authorise the next most senior judge of either division of the Supreme Court to exercise in that division any of the powers conferred by clause (3) or by rules made under this article.

4. Supreme Court as a Court of Record:

The Supreme Court shall be a Court of record and shall have all the powers of such a Court including the power subject to law to make an order for the investigation of or punishment for any contempt of itself.

5. Superintendence and Control over Courts :

The High Court Division shall have superintendence and control over all Courts and tribunals subordinate to it.

6. Powers of transfer of cases from Sub-ordinate Courts:

If the High Court Division is satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, or on a point of general public importance, the determination of which is necessary for the disposal of the case it shall withdraw the case from that Court and may –

(a) either dispose of the case itself;

(b) determine the question of law and return the case to the Court from which it has been so withdrawn (or transfer it to another subordinate court) together with a copy of the judgment of the division on such question, and the Court to which the case is so returned or transferred shall, on receipt thereof, proceed to dispose of the case in conformity with such judgement.

7. Binding effect of Judgement :

The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all Courts subordinate to it.

8. Action is aid of Supreme Court:

All authorities, executive and judicial, in the Republic shall act in aid of the Supreme Court.

9. Function of High Court Division:

In the High Court Division there are two types of Benches –

Single Bench comprising of one Judge while Division Bench comprising more than one Judge, High Court Division has got the following jurisdiction:

(a) Criminal Appellate Jurisdiction – Criminal Appeals are filed within this jurisdiction against judgement and order of conviction and sentence of the lower Court as permitted by law.

(b) Criminal Revisional Jurisdiction – Applications under section 439, 426(2). 526, 561A, 498 of the Code of Criminal Procedure are filed within this jurisdiction challenging the lower court’s order as permitted by law.

(c) Civil Appellate Jurisdiction – Civil Appeals are filed as First Appeal Tender (F.A.T.), First Miscellaneous Appeal Tender (F.M.A.T.) or First Appeal (F. A.) or First Miscellaneous Appeal (F.M.A.) within this jurisdiction against judgment and decree or judgement or order of appealable section of the Code of Civil Procedure passed by the lower Court as permitted by law.

(d) Civil Revisional Jurisdiction – Civil Revision is filed within this jurisdiction under section 115(1) of the Code of Civil Procedure.

(e) Special Original Jurisdiction – Writ Petition is filed within this jurisdiction Besides, company matters and admiralty suits are also directly filed in the High Court Division.

All the applications filed in Revisional Jurisdiction either Civil or criminal, will be treated as “Motion” which will be heard by Motion Court and admission of appeal both Civil and Criminal will be heard by motion Court also. Besides, application for condonation of delay in filing an appeal, application for permission of preparation of requisite paper books, etc. will also be heard by Motion Court.

10. Function of the Appellate Division:

As per provision of Article 103(1) of The Constitution of The People’s Republic of Bangladesh, the Appellate Division of the Supreme Court of Bangladesh shall jurisdiction to hear and determine appeals from judgements, decrees, orders or sentences of the High Court Division.

Article 103(2) of our constitution provides that an appeal shall lie as of right to the Appellate Division of Supreme Court from any judgfement, decree, order or sentence of the High Court Division in any proceedings, civil, Criminal or other if, where the High Court Division-

(a) certifies that the case involves as a substantial question of law as to the interpretation of the constitution;

(b) has sentenced a person to death or to imprisonment for life; or

(c) has imposed punishment on a person for contempt of that division; and in such other cases as may be provided for by the Act of parliament.

Article 103(3) of our constitution provides an appeal to the Appellate Division from a judgement, decree, order or sentence of the High Court Division in a case to which clause (2) of Article 103 of the constitution does not apply shall lie only if the Appellate Division grants leave to Appeal. There is no general rule for grant of leave to appeal by the Appellate Division.

It is the discretionary power of Appellate Division in the matter of granting leave to appeal for any judgement, decree, determination, sentence or order in any cause or matter passed by the High Court Division. Appellate Division can grant special leave to appeal under this article, from an interlocutory order. Generally the Appellate Division does not review the evidences of the lower Courts, but where there is gross miscarriage of justice, Appellate Division reapprises or reviews the evidences.

Article 103(4) of our constitution provides that parliament may by law declare that the provisions of this Article shall apply in relation to any other Court or Tribunal as they apply. in relation to High Court Division.

In view of the above it can be said that in the Appellate Division there are two categories of appeal-one is “appeal as of right” and another is “Appeal by leave”.

Article 103 of constitution of our Bangladesh is dealt with the jurisdiction of the Appellate Division which runs as follows:

103. (1) The Appellate Division shall have Jurisdiction to hear and determine appeals from judgements, decrees, orders or sentences of the High Court Division.

(2) An appeal to the Appellate Division from a judgement, decree, order or sentence High Cour Division shall lie as of right where the High Court Division – 

(a) Certifies that the case involves a substantial question of law as to the interpretation of this constitution; or

(b) has sentenced a person to death or to imprisonment for life; or

(c) has imposed punishment on a person for contempt of that Division; and in such other cases as may be provided by Aet of parliament.

(3) An appeal to the Appellate Division from a judgement, decree, order or sentence of the High Court Division in a case to which clause (2) does not apply shall lie only if the Appellate Division grants leave to Appeal.

(4) Parliament may by law declare that the provisions of this Article shall apply in relation to any other Court or tribunal as they apply in relation to the High Court Division.

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2 thoughts on “PRACTICE AND PROCEDURE IN THE SUPREME COURT OF BANGLADESH”

  1. Next time I read a blog, Hopefully it wont fail me as much as this particular one. I mean, Yes, it was my choice to read, however I really believed you would have something helpful to talk about. All I hear is a bunch of whining about something you could fix if you werent too busy searching for attention.

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