Powers Of High Court Division Under Article 102 Writ Jurisdiction In Criminal Matters
🔹 1. Overview of Article 102 – Writ Jurisdiction of the High Court Division
Article 102 of the Constitution of Bangladesh gives the High Court Division (HCD) the power to issue certain writs for the enforcement of fundamental rights and for other legal purposes.
Relevant Clauses:
Article 102(1): Allows the HCD to enforce fundamental rights guaranteed under Part III of the Constitution.
Article 102(2): Allows the HCD to issue writs for any other purpose, such as:
Habeas Corpus – unlawful detention;
Mandamus – to compel a public authority to perform a legal duty;
Prohibition – to prevent an inferior court from exceeding jurisdiction;
Certiorari – to quash orders of inferior tribunals or authorities;
Quo Warranto – to question the legality of someone’s holding of a public office.
Criminal Context:
While normally criminal matters are dealt with under the Code of Criminal Procedure (CrPC), there are circumstances where a writ may lie — especially:
Where fundamental rights are violated through illegal arrest or detention;
Where proceedings are without lawful authority;
Where there is malicious prosecution or abuse of power.
🔹 2. Scope of Writ Jurisdiction in Criminal Matters
The High Court Division may intervene through writ jurisdiction when:
The detention or arrest lacks lawful authority or violates fundamental rights;
The criminal proceeding is malicious, vexatious, or without jurisdiction;
The executive or police act in excess of power or for collateral purposes;
The detention is under Special Powers Act (SPA) or similar preventive laws but violates constitutional safeguards.
🔹 3. Leading Case Laws
Below are five landmark cases that illustrate how the High Court Division exercises writ jurisdiction in criminal matters under Article 102.
🏛 Case 1: Abdul Latif Mirza v. Bangladesh, 31 DLR (AD) 33 (1979)
Type: Habeas Corpus (Preventive Detention)
Facts:
Abdul Latif Mirza was detained under the Special Powers Act, 1974 (SPA).
The detention order lacked proper grounds and was based on vague allegations.
Issue:
Whether the detention was lawful and consistent with Article 33 and 102 of the Constitution.
Held:
The Appellate Division upheld the HCD’s finding that the detention was illegal.
The government must furnish precise grounds of detention to the detenu.
Detention based on vague or irrelevant grounds violates fundamental rights under Articles 32 and 33.
Principle:
“If the order of detention is not in accordance with the law or lacks procedural fairness, it can be struck down under Article 102 through a writ of habeas corpus.”
🏛 Case 2: Aruna Sen v. Government of Bangladesh, 26 DLR (SC) 29 (1974)
Type: Habeas Corpus (Preventive Detention)
Facts:
The petitioner challenged the detention of her husband under SPA.
The detention order was not properly communicated, and reasons were not served promptly.
Held:
The detention was illegal, violating Article 33(5) of the Constitution.
The constitutional safeguard of being informed of reasons “as soon as may be” must be strictly followed.
Principle:
“Preventive detention must strictly comply with constitutional safeguards; failure to do so renders detention unlawful and subject to writ jurisdiction.”
🏛 Case 3: Bangladesh v. Md. Kaiser Hossain, 43 DLR (AD) 91 (1991)
Type: Mandamus / Certiorari (Quashing Criminal Proceedings)
Facts:
The respondent filed a writ petition challenging criminal proceedings initiated with mala fide intention.
The High Court quashed the proceedings, holding them to be motivated and without lawful authority.
Held:
The Appellate Division affirmed that writ jurisdiction may be invoked where criminal proceedings are instituted for collateral purposes.
The Court emphasized that writ jurisdiction should not be used to bypass ordinary criminal trial, except where proceedings are clearly malicious or void ab initio.
Principle:
“Writ jurisdiction can quash criminal proceedings where the process of law is being abused or exercised for an ulterior motive.”
🏛 Case 4: Shahidul Alam v. Bangladesh, 70 DLR (HCD) 1 (2018)
Type: Habeas Corpus (Illegal Arrest and Detention)
Facts:
Photographer Shahidul Alam was arrested under Section 57 of the ICT Act for alleged “anti-state propaganda.”
His arrest and remand were challenged under Article 102 as violations of Articles 32 and 33 (personal liberty and protection of law).
Held:
The HCD emphasized that any arrest must comply with the CrPC and constitutional safeguards.
The Court ordered the government to justify the legality of the detention.
The case reaffirmed that Article 102(2)(b)(i) empowers the Court to issue writs when any person “is detained without lawful authority or in an unlawful manner.”
Principle:
“The High Court Division has constitutional authority to examine whether an arrest or remand is lawful and to protect personal liberty under Article 32.”
🏛 Case 5: State v. Deputy Commissioner, Satkhira, 45 DLR (HCD) 643 (1993)
Type: Mandamus / Prohibition (Abuse of Power by Executive)
Facts:
The Deputy Commissioner ordered detention of a person under the SPA without proper legal basis.
The HCD was moved under Article 102 seeking directions and declaration of the detention as illegal.
Held:
The HCD held that the executive cannot misuse preventive detention powers.
The detention was quashed as without lawful authority.
The Court issued directions (mandamus) to follow proper procedure and refrain from arbitrary exercise of power.
Principle:
“The High Court Division can issue writs against executive abuse of power even in criminal matters where fundamental rights are at stake.”
🔹 4. Summary of Legal Principles
| Ground | Relevant Writ | Illustrative Case | Legal Principle |
|---|---|---|---|
| Illegal detention or arrest | Habeas Corpus | Abdul Latif Mirza v. Bangladesh | Unlawful detention violates Article 32; HCD can order release. |
| Vague or mala fide detention | Habeas Corpus | Aruna Sen v. Bangladesh | Detention orders must state specific grounds; vague reasons invalidate it. |
| Abuse of criminal process | Mandamus / Certiorari | Bangladesh v. Kaiser Hossain | Criminal proceedings with mala fide intent can be quashed. |
| Arrest violating procedure | Habeas Corpus | Shahidul Alam v. Bangladesh | HCD protects right to liberty; unlawful arrest can be reviewed. |
| Executive misuse of preventive laws | Mandamus / Prohibition | State v. DC, Satkhira | Executive discretion under SPA is reviewable under Article 102. |
🔹 5. Conclusion
The High Court Division under Article 102 plays a crucial constitutional role in ensuring justice and protecting fundamental rights, even in criminal matters.
While ordinarily criminal trials proceed through the regular courts, the HCD intervenes only when the legality or constitutionality of the detention or proceeding is in question.
Thus, writ jurisdiction acts as a safeguard against abuse of executive and judicial powers and ensures that no person is deprived of liberty without lawful authority or due process.
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