The Appellate Division of the Supreme Court observed in a full verdict that the order passed by a magistrate cannot be challenged by a writ petition filed under the Article 102 of the Constitution, as the order passed by a magistrate is a revisable one under revisional jurisdiction before the sessions court concerned.
It also observed that when a judicial officer passes an order within the ambit of a particular law i.e. under the Code of Criminal Procedure the said order cannot be interfered with under Article 102 of the Constitution unless the said order is without jurisdiction or suffers from quorum non-judice.
The observation came in the verdict delivered by a three-member bench of the Appellate Division headed by Chief Justice Hasan Foez Siddique after disposing of a leave to appeal petition, filed against a High Court order that questioned a decision of the Additional Chief Metropolitan Magistrate Court No 4 in Dhaka sending two lawyers on police remand on June 8 this year.
The short verdict of the Appellate Division was announced on June 19 this year while the full text of it has been released on the Supreme Court website recently.
The apex court said, "If, the accused against whom the order of remand has been made are aggrieved by the said order they have the forum to move before the Court of Sessions concerned in its revisional jurisdiction. A 3rd person has no locus-standi to challenge the said order of remand under Article 102 of the Constitution before the High Court."
It also observed that it is true that an advocate is the integral part of the judiciary. However, it does not mean that an advocate is above the law and immune from any criminal proceedings. In view of Article 51 of the Constitution, only the President of the Republic shall not be answerable in any court for anything done or omitted by him in the exercise or purported exercise of the functions of his office.
The apex court also said, "A judicial officer has every right to pass any order within the ambit of law and if anyone is aggrieved by the same he has legal remedy before the Higher Court in appropriate forum."
According to the writ petition, Yasin Arafat Bhuiyan and Sohakul Islam Bhuiyan, two members of Dhaka Bar Association, while coming to Dhaka court for performing professional duty were harassed by some police personnel and they also physically tortured by them and subsequently a First Information Report was lodged against them and others by the police with Shampur Police Station on June 7 this year.
In connection with the said case, police arrested the said two persons and also wife of accused Yasin Arafat Bhuiyan and others and eventually, police forwarded them to the Court of Chief Metropolitan Magistrate, Dhaka along with an application for remand. After hearing of the application, the Additional Chief Metropolitan Magistrate granted a three-day police remand on June 8.
Challenging the remand order, Supreme Court lawyer Syed Fazle Elahi Obhi filed a writ petition and after hearing the same a High Court division bench on June 9 issued a rule and called for records of the Dhaka Court order of remand. Feeling aggrieved by the said order, the state has preferred the instant leave petition.