IN THE SUPREME COURT OF BANGLADESH

THE HIGH COURT DIVISION

The criminal Appellate jurisdiction
Criminal suit no: 20/2019

Manosh pot……………………………………..Appellant

Versus

Ms.oggatonama………………………………….Respondent

ON SUBMISSION TO THE SUPREMECOURT OF BANGLADESH HIGH COURT DIVISION

MOST RESPECTFULLY SUBMITTED

MEMORIAL FOR BEHALF OF PLAINTIFF

Page: 1

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 TABLE OF CONTENTS

I. INDEX OF AUTHORITIES……………………………………………………………………..3-5

II. STATEMENT OF JURISDICTION……………………………………………………………6

III. STATEMENT OF FACTS……………………………………………………………………….7

IV. STATEMENT OF ISSUES………………………………………………………………………8

V. SUMMARY OF ARGUMENT………………………………………………………………..9

VI. ARGUMENTS ADVANCED…………………………………………………………………..10-14

1 .THE WRIT IS VALID OR NOT?

2. WHETHER MR.POT DID NOT COMMUNICATED WIH HIS OGGATONAMA PARENTS?

3. WHETHER MR.POT ACTIVITIES IS SEXUAL OFFENCE OR NOT?

4. WHETHER MR.POT SILANCE PROVE THAT HE IS GULTY OR NOT?

VII. PRAYER………………………………………………………………………………………….15
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INDEX OF AUTHORITIES
TABLE OF ABBREVATIONS AND SYMBOLS

S.NO ABBREVIATION ABBREVIATION

1 Art. Article

2 Ch chapter

3 Govt. government

4 HC High Court

5 Hon’ble Honorable

6 SC Supreme court

7 V. versus

8 & and

9 p page

10 para paragraph

11 No. number

14
 STATUTES
1. Human rights and International human rights law
2. Penal Code, 1860 (Act No. XLV of 1860).
3. Code of Criminal Procedure 1898

Books

1. Constitution of the People's Republic of Bangladesh

2. Constitution, Constitutional Law And Politics : Bangladesh Perspective
3. Constitutional Law of Bangladesh - Mahmudul Hassan.

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 CASE LAWS
S.NO CASE CITATION PAGE NO FOOT NOTE NO

1 ĐORĐEVIĆ 1768
Vlastimir
(IT-05-87/1-A)
2 EEOC v. Z Foods

3 KAREMERA & 1667

NGIRUMPATSE
(ICTR-98-44-A)
4 Penny Muck v. 1992
Geffen Records
5 Faragher v. City 1998
of Boca Raton

6 Burlington 1998
Industries v.
Ellerth
7.

8.

9.

10

11

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STATEMENT OF JURISDICTION

The supreme court of Bangladesh high court division criminal appellate jurisdiction exercise
jurisdiction to hear and adjudicate the present suit under section 410 of the code of criminal
procedure 1898.the provision under which the plaintiff has approached this hon’ble court and
to which the plaintiff humbly submit is read herein under as:

Section 410 of the code of criminal procedure state that

Any person convicted on a trial held by a Sessions Judge, or an

Additional Sessions Judge, may appeal to the High Court
Division
 STATEMENT OF ISSUES

1 .THE WRIT IS VALID OR NOT?

3. WHETHER MR.POT COMMIT ANY SEXUAL OFFENCE OR NOT?
4. WHETHER MR.POT SILANCE PROVE THAT HE IS GULTY OR NOT?

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SUMMARY OF ARGUMENTS

WRIT IS VALID OR NOT: Writ means a form of written command in the name of
a court or other legal authority to act, or abstain from acting, in a particular
way.. Anything that is issued under an authority is a writ. Orders, warrants,
directions etc. issued under authority are examples of writs. There are five major
types of writs viz. habeas corpus, mandamus, prohibition, quo warranto and
certiorari. Each of them has different meaning and different implications. In India,
both Supreme Court and High Court have been empowered with Writ Jurisdiction.
Further, Parliament by law can extend power to issue writs to any other courts
(including local courts) for local limits of jurisdiction of such courts. As in Burton’s
Legal Thesaurus writ stands for bid, bidding, command, commandment, decree,
decreetal, dictate, direction, directive, fiat, mandate, order, ordinance, precept,
regulation and requirement1. But in legal terminology it has a restricted
meaning. In law the word writ is used to indicate a particular type of order or
judicial process. It has been defined by older authorities and modern authorities
in different ways. According to Blackstone- “Writ is a mandatory Letter from the
King in Parliament, sealed with His Great Seal, and directed to the Sheriff of the
County wherein the injury is committed or supposed so to be, requiring him to
command the wrongdoer or party accused, either to do justice to the
complainant or else to appear in Court, and answer the accusation against him.”2
In the words of Carter, "It was the King’ s order to his liege, written on parchment
and sealed with the Royal Seal, and disobedience of the writ was contempt of the
Royal Authority and punishable as such.”3 Stroud defined it as, “the process by
which civil proceedings in the High Court are generally commenced. There are
many other kinds of writs, e.g. writ of execution, writ of error, writ for the
election of a Member of Parliament, etc., issued in the name of the reigning
Monarch, for the doing, of some act or thing.”4 According to modern authorities,
"Writ is a documentary order issued in the name of a Court or of an executive
officer, directing the person, to whom it is addressed, to do or refrain from doing
a particular act described in the particular writ .”5 ln the words of A. R. Biswas,"
Writ is an order or process issued by Court or judicial officer asking a person to
perform or refrain from performing any act. It is an extraordinary process of the
Court.”6 Earl Jowitt observed "writ as a document under the seal of the Crown, a
Court or an officer of the Crown, commanding the person to whom it is addressed
to do or forbear from doing some act7.” Steven H. Grifis viewed it, as" a legal
order issued by the authority and in the name of the state to compel a person to
do something therein mentioned. It is issued by a competent court or other
tribunal, and is directed to the Sheriff or other authority to execute it. In every
case the Writ itself contains direction for doing what is required.8 From the above
it is evident that a writ in the legal sense must have the following characteristics:
1) It must be an order or process; 2) It must be in writing; 3) It must be given by
the Crown, Crown Officer, Court or Tribunal; 4) It must be in mandatory nature
requiring the person to whom it is addressed to do or refrain from doing an act; 5)
It must be issued against an inferior court, officer or a person; 6) It is an
extraordinary process containing the direction for doing what is required; and 7)
Disobedience to it is contempt of the Royal Authority and punishable as such.

Writ Jurisdiction of the Supreme Court under the Constitution of Bangladesh

Under the 1972 The Constitution has conferred on the High Court Division (HCD)
original jurisdiction only in one case and that case is the field of writ matters. The
basis of writ jurisdiction is Article 102 of the Constitution of Bangladesh. 102(1) to
pass necessary orders to enforce fundamental rights under article 44(1) the right
to move the High Court Division under article 102(1) is itself fundamental right.[6]
In view of the provision of Art. 44, the High Court Division cannot refuse to
entertain an application under article 102 (1) on the ground that the petition
involves resolution of disputed question of fact. If necessary in appropriate cases,
the court will have to take evidence. The constitution does not stipulate the
nature of the relief which may be granted. "102 (2) the High Court Division may, if
satisfied that no other equally efficacious remedy is provided by law- (a) on the
application of any person aggrieved, made an order- (i) directing any
person performing any function 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
10:1&2 (2006) Bangladesh Journal of Law 26
(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 on 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." The Article virtually reproduces the
provisions contained in Article 98 (2) of the 1962 Constitution of Pakistan.
Although the word writ has not been used anywhere in Article 102 the Rules11
followed in practice are those of writs and the powers exercised under that
Article are virtually the powers which used to be exercised under writ jurisdiction.
Article 102 empowers the High Court Division to issue orders (which are in
substance writs) in the nature of prohibition and mandamus12 certiorari13
habeas corpus14 and quo warranto15. Moreover the word writ is specifically
used in Article 104 while conferring powers on the Appellate Division of the
Supreme Court. In this article the two words writ and order will, however, be used
interchangeably in an attempt to examine the nature and scope of the writs
under the 1972 Constitution of Bangladesh.
In this cases the writ is valid challenging the vires of the ordinance to extent it was
applicable to this case.

Ordinance is valid or in valid: It is said that the Ordinance making power of the
President is not justifiable. But these comments may become the subject of a
discussion. In we go through the following discussion, we may get a different
thing.

It is said in art.=1 of the Constitution of the Bangladesh, while giving immunity to

the President of Bangladesh, that, "........but this clause shall not prejudice the
right of any person to take proceedings against the Government." And according
to art.102 (2)(a)(ii), the High Court Division may make an order declaring that the
proceeding taken by a person performing functions which has been done or taken
without lawful authority in connection with the affairs of the Republic or of a local
authority, has no legal effect.

Here, `without lawful authority` should include the meaning that an act has been
done without maintaining the authority of Constitution.

In the case of Dr. Mohiuddin Faruque v. Bangladesh, [49 DLR (AD) 1.], B. B. Roy, J.
said in paragraph 97 that- " ...... the expression 'aggrieved person' means not only
any person who is personally aggrieved but also one whose heart bleed for his
less fortunate fellow beings nor a wrong done by the Government or a local
au|hority is not fulfilling its constitutional or statutory obligation{."

Article 48(2) provides that, "the President shall, as Head of State......" and
according to article 152, 'State' includes the Government. So, we may say tha| the
President is the head of the Government.

Article 93(1) provides that, the Pzesident can make and promulgate Ordinance
when he is satisfied that the existing circumstances deserve immediate action. It
is obviously a constitutional obligation. And when he makes and promulgates an
Ordinance in such a situation that immediate action is not necessary then it
becomes a constitutional wrong.

In the case of Anwar Hossain v. Bangladesh (1989), B.H. Chowdhury said,

".....Then who will consider the validity or otherwise the law? obviously the
judiciary." According to art.152, law also means Ordinance.

Thus, we may say that if the President makes and promulgates an Ordinance, the
Ordinance may become justifiable on the application of any aggrieved person in
the High Court Division on the ground that art.93 is not followed by the President
in regard to make and promulgate an Ordinance.

Ordinance making power of President and a gap in the theory

It is said that, Constitution is the solemn expression of the will of the people.
Thus, all the power conferred by the Constitution is conferred according to the
will of the people. So, the Ordinance making power of President is a power, which
is conferred according to the will of the people. The Ordinance must be passed by
the parliamentarians [art.93].

However, parliamen|arians are the zepresentatives of the people and the wish of
the people is expressed through the parliamentarians. Thus, when the
parliamentarians disapprove an Ordinance it is to be seemed that the people also
disapprove the Ordinance. So, when the representatives of the people disapprove
an Ordinance then how does the Ordinance making power of Presilent become
the expression of the will of the people?

So, there is a gap. But it should be pointed out that, 1) the Ordinance making
power is conferred by the Constitution according to the will of the people upon
the President in order to make and promulgate such a type of Ordinances which
reflect the will of the people according to the provisions of the Constitution. 2)
President in order to make and promulgate the Ordinances must deserves the
consent of the cabinet. Thus, when an Ordinance is made and promulgated, it is
seemed that the Ordinance has got the consent of the cabinet as well as the
con{ent of the people as the ministers are the representatives of the people.

3) it is seemed that the President as the head of the State should be a man of
conscience, good qualities, educated and these things must be reflected through
the acts of the President. When the President makes and promulgates any
Ordinance, it is seemed that it will be such a nature which will able to be passed
by the parliamentarians.
4) When any power or duty is conferred then it is thought that it will be done
honestly.

So, there is no gap at all. The nature and result of power and duty is depended
upon the way of application of the power and perform of duty. The Ordinance
making power of President is conferred by the Constitution so that it will be
practiced honestly. But does it hamper the concept of popular sovereignty:

It is said that by using the Ordinance making power, the President moves aside
the Parliament. The parliamentarians are the representatives of the people and
through them the will of the people is expressed. So, when an Ordinance is made
and promulgated it moves aside the will of the people. Thus, it is said that the
Ordinance making power of President hampers the concept of popular
sovereignty.

But it can be said that the power does not hamper the concept totally, because of
the reasons mentioned above.

Art.48 (2) says that, "The President shall, as the Head of State..." that is the
president is the head of the State.

Art.152 says, "State includes the Parliament, the Government and statutory public
authorities."
 PRAYER

It is most humbly prayed that this Hon’ble Court would graciously be pleased
to the punishment do not reduce for the ends of justice
And for this act of kindness the plaintiff as in duty bound shall ever pray..