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Afford opportunity of being heard through a lawyer

Accused cannot be shown arrested

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12th-Nov-2016       
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Appellate Division L :
(Civil)
Surendra Kumar Sinha CJ
Syed Mahmud Hossain J
Hasan Foez Siddique J
Mirza Hussain Haider J
Order
May 9th, 2016
Government of Bangladesh and others ………Petitioners
vs
Mahmudur Rahman ……and another
……………….. Respondents*
Code of Criminal Procedure (V of 1898)
Section 167
Order May 9th, 2016
It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer.
The manner in which the respondent is being dealt with is deprecated. From the order sheet of some cases we have reasons to believe that the respondent has been harassed by the law enforcing agencies. We modify the interim order of the High Court Division and direct that the respondent Mahmudur Rahman should not be shown arrested in connection with any other case unless there is true complaisance of section 167 of the Code of Criminal Procedure. Even he should not be arrested at the Jail gate after he is released from the custody which is not permissible in  law.
Mamotazuddin Fakir, Additional Attorney-General instructed by Haridas Paul, Advocate-on-Record -- For the Petitioners.
AJ Mohammad Ali, Senior Advocate instructed by  Zainul Abedin, Advocate-on-Record -- For     the Respondents.
Order
We have perused the impugned order and heard the learned Counsel of both the parties. This petition relates to an interim order passed by the High Court Division by which it has directed the writ respondents not to create any obstruction or showing him arrested in connection with any other cases in which the respondent Mahmudur Rahman was not an FIR named offender or to arrest him from the jail gate after his release from the custody without due process of law. We noticed that the writ petitioner has been shown arrested in a good number of cases and some of the order sheets have been placed before this court. On perusal of the order sheets, we have noticed that the police officers have not complied with the provisions of section 167 of the Code of Criminal Procedure while praying for showing him arrested and repeatedly made petitions showing him arrested in many cases and the Magistrate passed mechanical orders on their applications.
2. It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer. The learned Additional Attorney-General submits that the order of the High Court Division is so vague and if this order remains, it would be difficult on the part of police to implicate him in other cases even if the police officers after investigation find his complicity in an occurrence. True, the order is vague, but the manner in which the respondent is being dealt with is deprecated. From the order sheet of some cases we have reasons to believe that the respondent has been harassed by the law enforcing agencies. In view of the above, we modify the interim order of the High Court Division and direct that the respondent Mahmudur Rahman should not be shown arrested in connection with any other case unless there is true complaisance of section 167 of the Code of Criminal Procedure. Even he should not be arrested at the Jail gate after he is released from the custody which is not permissible in law.
3. The High Court Division is directed to dispose of the Rule within 3 (three) months from the date of receipt of the order.
This petition is disposed of with the above observations.

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