Introduction

This article will give a clear guideline on the issue of Contempt of Court in Bangladesh. At present there is no statutory law for contempt of court and this matter is governed by the preexisting case laws on contempt. In this article we will discuss the significant case laws that have defined the concept of contempt, its applicability, principles and punishment.

Which Statutory Law governs the matter of Contempt?

As we know, there is no statutory law for contempt at present. However, under Article 108 of the Constitution, the Supreme Court has the power to make an order for the investigation of or punishment for any contempt of itself. Therefore, contempt claims are made under Article 108 of the Constitution of Bangladesh. 

What is Contempt of Court?

No statute has given any definition as such to explain what constitutes an offence of Contempt therefore we shall be relying on case laws.  In the decision of Moazzam Husain vs. The State reported in 35 DLR (AD) 290 Justice Shahabuddin Ahmed made an observation in the following manner:–

’Contempt of Court’ has nowhere been defined in statutes. It has been conveniently described by referring to its ingredients and citing examples. Contempt’ may be constituted by any conduct that brings authority of the Court into disrespect or disregard or undermines it dignity and prestige.’’

Further in the decision of Mahbubur Rahman Sikder Vs. Mojibur Rahman, 35 DLR (AD) 203 after giving a thorough deliberation on the issue Justice Badrul Haider Chowdhury observed:

“Contempt of Court means civil contempt or criminal contempt and civil contempt is defined as wilful disobedience to any judgment, decree, direction, order writ or other process of Court or Wilful breach of an undertaking given to the Court. If our order and direction are disobeyed wilfully certainly that would amount to contempt.’’

 Our Appellate Division considered several decisions of home and abroad in various decisions. From those decisions, Justice Md. Ashfaqul Islam in the case of Md. Abdul Halim Vs. Md. Tareque and Ors. in  63 DLR (2011) 465, inferred that-

‘’only the Wilful and deliberate disobedience of the Court’s order can be considered to be the main ingredient to constitute a contempt of Court in a given situation.’’

The essence of contempt is an action or inaction amounting to an interference with or obstruction to or having a tendency to interfere with or to obstruct due administration of justice. This is the essence of the definition that has been given in the civil contempt or criminal contempt. It has been laid down by our Appellant Division in 35 DLR’s case that-

‘’the confidence in the Court’s of justice which the public possesses must in no way be tarnished, diminished or wiped out by contumacious behaviour of any person.’’ 

Civil Contempt and Criminal Contempt

Contempt of Court means civil contempt or criminal contempt. The distinction between criminal contempt and civil contempt is narrow and it will be profitless to embark upon such an inquiry. It was held in Catmur vs. Knatchbull that non-performance of an award was a contempt of the Court and might be regarded technically an offence. But as it related simply to a civil matter, and was rather in the nature of process to compel the performance of a specific act, the matter was in substance not criminal but civil.

Types of Contempt of Court?

There are three categories of contempt of Court,

(a) Scandalisation of Court

(b) Disobedience to the order of the Court or breach of undertaking given to the Court

(c) Interference with the course of justice

Scandalising the Court is a worst kind of contempt. Making imputations touching the impartiality and integrity of a Judge or making sarcastic remarks about his judicial competence is also contempt. Con-duct or action causing obstruction or interfering with the course of justice is contempt. To prejudice the general public against a party to an action before it is heard in another form of contempt. 

What does not amount to Contempt of Court?

The jurisdiction of contempt must be taken with utmost care that it is not used on occasions or in cases to which it is not appropriate. In the case of Md. Samiulla Khan vs. State 15 DLR 150 it has been held that the power of contempt should be used sparingly and only in serious cases and the Court should not be either unduly touchy and on the wisdom and restraint with which it is exercised. In addition, the object of the contempt proceeding is to protect the dignity of the Court and not to satisfy the grudge of any private individuals. 

Important principles of contempt from case laws 

  • (i). Mainul Hosein vs Sheikh Hasina Wazed 53 DLR 138 

’Per Md Abdur Rashid J (agreeing) A contempt proceeding is quasi-criminal in nature. The contemner is entitled to benefit of doubt, and since the Court is both prosecutor and judge, rule as to proof of guilt of the contemner must be strictly observed’’ 

  • (ii). Bangladesh Supreme Court Bar Association vs Shah Azizur Rahman, MP 52 DLR 159. 

‘’ Contempt of Court proceeding is a quasi-criminal proceeding—In such a proceeding the petitioner must prove beyond all reasonable doubt that the contemner has deliberately violated the Court’s direction.’’ 

  • (iii). Mainul Hosein vs Sheikh Hasina Wazed 53 DLR 138 

‘’Per Md Abdur Rashid (agreeing): Statements based on inaccurate assessments of situation, however grossly misreading those may be, cannot amount to contempt of court. Moreover, in the absence of mens rea, no contempt is established.’’ 

  • (iv). Abdul Jabbar vs State 44 DLR 21 

‘’ The Magistrate having appeared to have violated the order of the Court through misreading of the order and there being no mens rea in the violation, he need not be asked to show cause as to why he should not be held guilty of contempt of the Court.’’ 

  • (v). Anwarul Hoque vs Golam Mahmud and Md lvlohsin 5! DLR 242

‘’ The Sessions Judge or any other judicial officer shall not act merely as a post box to send each and every application to this Court even if he finds no ground to send the same for taking action under the Contempt of Courts Act’’.  

  • (vi). Abu Taiyab Miah vs Nurun Nabi Miah 46 DLR 561 

‘’ Failure to obey any process of the Court, when other methods of enforcing the process are available, does not amount to a contempt of Court. In view of the decisions in the case of Bahawal Bhaloo, 14 DLR (SC) 273 and Dr MO Ohani vs Dr ANM Mahmood, 18 DLR (SC) 463 the present application filed by the plaintiff- petitioners under the Contempt of Court Act, 1926 (Act XII of 1926) has no substance. There is no reason for this Court to hold that the opposite parties deliberately flouted the order of the Court.’’ 

  • (vii). Rafiqul Alam vs Bangladesh 50 DLR 628 

‘’ In a case where no execution case is filed, the contempt petition avoiding such proceeding based on the ground of inaction on the part of the Government Officers and the defendant is misconceived.’’ 

  • (viii).  National Bank Limited and Ors. M.R. Trading Company 

‘’ The writ petitioner-respondent moved contempt Petition No. 239 of 2019 on 28.04.2019 against the leave petitioner No. 2 alleging violation of the order dated 05.10.2017 passed in Writ Petition No. 13673 of 2017. The said order was non-est in the eye of law because the Rule issued in the said writ petition was discharged long before initiation of contempt proceeding. Every person is liable to make full and correct statement in his petition. Suppression of the fact of getting the Rule discharged and production of such non-est interim direction at the time of filing of the contempt petition bringing allegation of violation of the said non-est interim order and obtaining Rule on such misconceived contempt petition is tantamount to practicing fraud upon the Court. Knowing full well about the non-existent interim order, the respondent made false representation before the Court of law with dishonest intention, so he is guilty of practicing fraud upon the Court.’’ 

  • (ix). Mamtaz Hasan Chowdhury Vs. M. Haroon 

‘’ Be that as it may, let us now consider the allegation of CONTEMPT. The basis of the allegation arises out of the non-compliance of the Order passed by the High Court Division in Civil Revision No. 2221 of 2005, in its Judgment dated 6-12-2005.

  1. But the order was not complied with by the contemners. It may be recalled that the decree obtained by the petitioner is in the nature of declaration that the Order dated 28-4-1980, canceling the allotment made in favour of Moheruddin Chowdhury, was illegal.
  2. No doubt this declaration is binding upon RAJUK and all concerned in respect of Plot Nos. 20 and 20A. But the decree did not spell out any direction.
  3. A State being the most law abiding Institution is bound by any declaration given by a Court of law. As such, no execution case is even necessary. Similarly, the various institutions of the State, be it is the Government or any statutory corporation is bound by the declaration and is expected to carry out such a declaration without any further direction in this respect since non-compliance of any decree, even if it is only by way of declaration, shows that the relevant institution is not law abiding. If any institution of the State chooses to defy law, there may be failure of the Rule of law, a basic structure of the Constitution.
  4. In this case, the failure on the part of the officials of RAJUK to honour the decree is no doubt reprehensible but in the absence of specific direction, does not constitute CONTEMPTof Court.’’

(x). The State vs. Mosammat Monowara Begum and Ors. (09.05.2006 – BDHC)

‘’As stated by the superior courts, a contemner may challenge a competent rule and file counter affidavit giving alternative facts and circumstances but before hearing of the Rule if he changes his mind and offers unqualified apology acceptable to the court withdrawing his earlier Affidavit, then the apology cannot be said to be a belated one. The Bar and the Bench are complementary to each other and one of the contemners being a learned Advocate of this court should be careful in future so that it may not be necessary to issue contempt rule to compel obedience of the orders of this court. In the result, the apologies offers by the contemners are accepted and the Rule is discharged’’ 

  • (xi). Saleem Ullah vs State 44 DLR (AD) 309.

‘’  The responsibility of a reporter who is also a practicing advocate will be a little more onerous than one who acts as a mere journalist.’’ 

  • (xii). Saleem Ullah vs State 44 DLR (AD) 309 

‘’ Nabbing of contemner—It is not possible for a Court to take note of all kinds of contemptuous utterances made in the press or in public gatherings. As an officer of the Court the counsel may bring any matter to the notice of the Court that may call for action.’’ 

  • (xiii). Bangladesh Supreme Court Bar Association vs Shah Azizur Rahman, MP 52 DLR 159. 

‘’ Contemner, having shown respect to this court and denied the allegations which is supported by the rejoinder published in the three newspapers, the contemner is not guilty of contempt of this court but he is a victim of the situation created by the publication of news.’’   

  • (xiv). Saleem UlJah vs State 44 DLR (AD) 309 

‘’ Limits of the press— Freedom of the press is recognized in our Constitution—a Court is to suffer criticism made against it. Only in exceptional cases of bad faith or ill motive it will resort to law of contempt.’’ 

  • (xv). Justice Ashfaqul Islam in the case of Md. Abdul Halim Vs. Md. Tareque and Ors. in 63 DLR (2011) 465 

‘’It is needless to mention that contempt proceeding is a quasi-criminal proceeding and in such a proceeding, heavy burden has been thrust upon the contempt petitioner to prove beyond all reasonable doubt that the contemner has deliberately violated or flouted the Court’s direction.’’

‘’A proceeding of contempt of Court is a quasi-criminal proceeding and the case of each contemner has to be considered separately on the basis of materials on record.’’

‘’Proceedings for contempt of Court are of a quasi-criminal in nature and where there is any reasonable doubt, the person charged with contempt is entitled to benefit of doubt.’’

Punishment for Contempt of Court

As there is no statutory law for contempt at present, therefore, the punishment for contemnors are not stated in any statute. As a result, the punishment for contempt depends on the discretion of the court and previous case laws. It has been seen that in most cases the court has fined the contemnors and in some cases the court has also punished contemnors with imprisonment.

Legal Service regarding Contempt of Court by CLP:

The Barristers, Advocates, and lawyers at CLP in Gulshan, Dhaka, Bangladesh are highly experienced at assisting clients in relation to Contempt of Court proceedings.For any queries or legal assistance, please reach us at: E-mail: info@counselslaw.com     Phone:+8801700920980. +8801947470606. Address: House 39, Road 126 (3rd Floor) Islam Mansion, Gulshan 1, Dhaka.

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