SUPERIOR COURT

 

SUPREME COURT OF BANGLADESH

 

The Constitution of Bangladesh has set up at the apex of the judiciary, the Supreme Court of Bangladesh comprising the Appellate Division and the High Court Division. It is a composite court having the two separate Divisions. It is atone she superior court of the country. It is a new concept introduced for the first time in the Sub-continent. The functions of the two Divisions are distinct and separate. Separate appointments are made for each Division. The Judges of each Division sit exclusively in the Division to which they are appointed. The Chief Justice of the Supreme Court, who is appointed to the Appellate Division, is constitutionally known as the Chief Justice of Bangladesh. The two Divisions are governed by two separate sets of rules as regards practice and procedure.

 

Under the Constitution, the permanent Seat of the Appellate Division is to be in the Capital, but Sessions of the High Court Division may be held at place or places as the Chief Justice of Bangladesh with approval of the President from time to time appoint.' At present both the Divisions sit in the Capital of the Republic. All executive and judicial authorities throughout Bangladesh are required to action aid of the Supreme Court.

 

APPELLATE DIVISION

 

The functions of the Appellate Division are to hear and determine appeals from the judgments and orders of the High Court Division only. The appellate powers are broadly divided into two heads, that is to say, appeals provided under Article 103 of the Constitution and appeals not specifically provided in the said Article. The first category, where an appeal lies as a matter of right, includes only three kinds of appeals. Firstly, appeal on a question relating to interpretation of Constitutional provision. Secondly, appeal in a case where a sentence of death is imposed, or where the High Court Division, andlastly, imposes a sentence of transportation for life, appeal against punishment for contempt of court imposed by the High Court Division itself. The Second category includes all other orders of the High Court Division, if the Appellate Division grants special leave to appeal and this part is analogous to the jurisdiction previously exercised by the Privy Council. The Appellale Division itself brings the largest number of cases for hearing before the Appellate Division by special leave granted at preliminary hearing. Leave is not granted unless a question of law of public importance in civil cases or an error of law or procedure leading ton failure of justice in criminal cases is involved.

 

The Appellate Division also enjoys a Constitutional Advisory jurisdiction. There is a provision for reference to the Court by the President of Bangladesh any question of law of public importance on which he desires to obtain the opinion of the Appellate Division. Under Article 105 of the Constitution, Appellate Division has been empowered to review any judgment pronounced or any order made by it. The Division is also empowered to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it.

 

 

HIGH COURT DIVISION

 

The High Court Division is the Superior forum of first instance having general jurisdiction. It has the onerous responsibility of seeing how laws throughout the country is interpreted and applied by all courts subordinate or inferior to be.

 

The jurisdictions of the High Court Division flow from two sources, namely the Constitution and the laws. The Constitution grants a special jurisdiction to the High Court Division under Article 102. This Constitutional jurisdiction is known as writ jurisdiction. Besides, it has been Constitutionally provided for under Article 109 that this Division of the Supreme Court should have the power of superintendence and control over all courts subordinate to it. It can also transfer any suit from the subordinate court and try itself if there is any substantial question of law as to the interpretation of the Constitution or a law of general public importance, is involved. Tins provision confers on High Court Division an additional Constitutional jurisdiction inasmuch as it makes it the responsibility of the High Court Division to supervise and control the subordinate courts. The power conferred is a general power. It includes the power to control all subordinate courts administratively as well as judicially, It can make and issue general rules, and procedure of subordinate courts, prescribe forms in which books, entries and accounts shall be kept by any such courts, and can call for returns. However, the condition precedent for the exercise of power of superintendence and control over courts is the requirement that those courts must be subject to High Court Division's appellate or revisional Jurisdiction. The General jurisdiction of the High Court Division can be divided under four major heads, namely, Civil Jurisdiction. Constitutional or Writ Jurisdiction, Special Statutory Jurisdiction and Criminal Jurisdiction.

 

Civil Jurisdiction

 

The powers of the High Court Division under Civil Jurisdiction have three broad heads, namely, Appellate Power, Revisional Power and power in the matter of reference made to it. The Constitution and other laws in force amongst which procedural law is predominant have conferred these powers upon the Division.

 

Appellate Power: As an appellate court, the High Court Division can hear and determine appeals from decrees and order passed by the subordinate civil courts. This depends primarily upon the valuation of the suit. First appeal lies to the High Court Division in those cases where the valuation lathe suits or proceedings exceed taka twenty thousand. Besides trying first appeals, so long the High Court Division also heard appeals from appellate decrees called Second Appeals. For the purpose of achieving speedy and less expensive justice, on the recommendation of the Law Committee, 1976, the second appellate jurisdiction of the High Court Division has been eliminated by modifying its

power of interference under revisional jurisdiction in a manner so as to sufficiently accommodate a second appeal under revisional jurisdiction by the Law Reforms Ordinance, 1978.

 

Revisional Power:            The High Court Division has the power of revising orders passed by the subordinate civil courts in cases in which no appeal lies thereto. The conditions precedent to the exercise of rcvisional power by the High Court Division is that there must be a case decided by a subordinate court, no appeal must lie to the High Court Division against that decision, and in deciding the case the subordinate court mast have committed an error of law apparent on the face of the record. In such cases, the Division may call for the records of the subordinate court and may make any order as it thinks fit. So long, in civil matters, it was only the High Court Division, which exercised revisional powers. But large member of interlocutory revisional applications were taken to the Division, which was a patent cause of delay in the disposal of cases for which the litigants suffered too much.

 

In that view of the matter, in the Report of the Law Committee, 1976, it was suggested that the revisional power of the High Court Division along with its second appellate power should be modified in such a manner so as to accommodate the remedies of revision and second appeal under a single jurisdiction of the Division, namely, the rcvisionul jurisdiction. Consequently, abolishing the second appellate power, and simplifying the revisional power, and, accommodating remedies of both of them, the revisional power of the High Court Division has been modified and reconstituted by the Law Reforms Ordinance, 1978. From June 1, 1979, the High Court Division exercises the power of revising any order of subordinate civil courts in which no appeal lies thereto, if the subordinate court commits any error of law apparent on she face of the record of any case. The District Judges have now been vested with revisional powers. When a revision is sought against an order of a District Judge, the High Court Division can determine the matter if it grants leave to consider the question of law of public importance occasioning failure of justice.

 

Reference to the High Court Division: If in a sail, appeal or execution case in which the decree is not appellable, a question of law arises where the court concerne4 entertains a

reasonable doubt, it may suo motu or on application of any party, refer the matter for the opinion of the High Court Division.

 

Constitutional or Writ Jurisdiction:

 

Under Article 102 of the Constitution, the High Court Division has been empowered to issue certain directions and orders. The jurisdiction so granted is no other than writ jurisdiction authorizing the High Court Division the power to issue orders of prohibition, mandamus, certiorari, habeas corpus, and quo warranto without using their technical names and the jurisdiction can be exercised only when no other adequate remedy is provided by law.

 

The power to issue the writs is given, not to the individual Judges, but to the court, so that successive applications to different Judges of the same court would not be permitted. If a bench of the High Court Division dismissed a petition for a writ, there might be an appeal to the Appellate Division of the Supreme Court.

 

Order or Writ of Prohibition: An Order of Prohibition as its name indicates, is issued to prohibit an inferior body or tribunal from continuing to act in relation to a matter which is beyond its authority or jurisdiction. The office of an order of prohibition is primarily supervisory having for its object the confinement of courts and tribunals of peculiar, limited or inferior jurisdiction within their bounds.

 

Order or Writ of Mandamus: An Order of Mandamus lies to compel the public officer or body to perform statutory duty of a ministerial nature. Ordinarily mandamus will not issue to compel a public officer to exercise his discretion in a certain way. Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy.

 

Order or Writ of Certiorari: By means of an Order of Certiorari the records and proceedings are celled for by the High Court Division with a view to examining their legality, and if the High Court Division comes to the conclusion that the inferior tribunal has acted in excess of its jurisdiction or in a manner which is opposed to the principles of natural justice or that there is an error apparent on the face of the record, the impugned orders are quashed by it and put out of the way.

 

Both certiorari and prohibition are limited to the enforcement of judicial functions and are not concerned with legislative functions. Neither may be used to control jurisdiction to non-statutory private or domestic tribunals. Prohibition and certiorari may not be used to call in question the decision of an authority in the same way as a finding of a subordinate court can be attacked in appeal. The court hearing the writ petition acts in a supervisory capacity.

 

Order or Writ of Habeas Corpus: The Order of Habeas Corpus is issued by the High Court Division to see that no person is kept in confinement illegally or without lawful authority. It is a prerogative writ of highest Constitutional importance, being a remedy available to the meanest against the mightiest. It is a palladium of liberty of the common man. The object of the writ is to secure the liberty of the subject by means of a summary adjudication of the legality of his detention. It is immaterial whether the person applying has been detained in private or public custody. The writ is available in all cases where any illegal and improper deprivation of personal liberty of the subject baa taken place. Habeas Corpus application can either be made by the person who has been deprived of his personal liberty or it can be made by some one who is interested in the detenu." In this respect, the habeas corpus proceedings differ from other writs.

 

Order or Writ of Quo Worranto: An Order of Quo-warrunto is issued upon an information which may be lodged against a person who claims or usurps office, franchise orliberty, and upon such information being laid the court will enquire by what authority the person who claims or has usurped the office, support his claim. The proceedings are commenced in appropriate cases to have the right to the office or franchise determined. It is used to try the civil right too public office.

 

Thx office must be a public no statutory office under statutory powers. The restriction in other writs that the person applying should be an aggrieved party does not apply to the applicant for a writ of quo-warranto. Any person may apply, as the enquiry initiated, relates to a matter in which the public are interested, but the other condition, namely, that there is no other adequate remedy, would govern the exercise of this jurisdiction also. Where the law which creates the public office also provides the manner in which the appointment to it may be questioned, proceedings under provision of Article 102(2)(b)(ii) of the Constitution will be incompetent, as the other remedy in cases with in its scope would replace quo-warronto. Qao-warrunto does not lie to question the claim to and office in a private association, or an institution like a private college or school, or a private corporation.

 

The procedure to move the High Court Division in writ is by a verified writ petition and is to be moved before the Division Bench consisting of two Judges by way of motion. On hearing the advocate or the petitioner, the Court may by a summary order reject the petition. When it is admitted, Order of a Munsif. The Subordinate Judge in exercise of his appellate power as a delegate of the District Judge disposes of the appeals so transferred. At some places, Subordinate Judges have been invested with power to act as Small Causes Court. An appeal from a decree or order of a Subordinate Judge lies to the District Judge where the value of the original suit does not exceed taka twenty thousand, and to the High Court Division in any other case.