Sadiya S. Silvee, Research Assistant, Bangladesh Institute of Law and International Affairs:

There remains a controversy, many times, in the cases relating to murder- whether decision of a particular High Court (HC) bench to be followed or not in deciding the appeal. Generally, the decision of the higher courts is binding on its subordinate courts.  As provided in Article 111 of the Constitution of Bangladesh provides, “the law declared by the Appellate Division (AD) shall be binding on the High Court Division (HCD) and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it.” This implies the HCD to follow the decision   of the AD and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent [Bangladesh Agricultural Development Corporation (BADC) vs. Abdul Barek Dewan being dead his heirs: Bali Begum and others, 19 (1999) BLD AD 106]. But, does a decision of one HC Bench is a binding precedent upon another HC Bench? However, Article 111 of the Constitution is reticent in this regard. If it is assumed the decision is not binding, then, is it necessary for one HC Bench to accept the decision of another HC Bench?

In the case of State vs. Abdur Rahman and Hakim [27 (1975) DLR (HCD) 77] the Division held, “in this case specter of death has been haunting the appellant for more than seven months, because, the death sentence remained suspended over his head on account of want of confirmation by this Court. This provided sufficient extra punishment which calls for a reduction in the sentence.” This conveys 7 months delay was considered by that bench of the HC to be an extenuating circumstance. However, in the State vs. Punardhar Joydhar & Kudu & Shepali [31 (1979) DLR (HCD) 312], another bench of the HC stated,  “extremely excessive delay in disposal of the case of a condemned prisoner would be an extenuating circumstance for imposing a lesser sentence of transportation for life. A delay of one year or so cannot, however, be treated as an extremely excessive delay.”

Similar disagreement exists between the Benches of the HC in considering delay by itself as an extenuating circumstance. In the State vs. Mossammat Malek Khatun [37 (1985) DLR (HCD) 53] the delay in execution of death sentence was deemed to be a sufficient enough extenuating factor for commuting the sentence of death. Contrastingly, in the Nowsher Ali vs. State [39 (1989) DLR (HCD) 57] mere delay in confirming the sentence of death was not considered as a ground by itself to commute the sentence of death as an extenuating factor. Additionally, the bench supplemented the decision by stating, “the delay of 2 or 3 years in execution of the death sentence due to want of confirmation under special circumstances cannot rank as mitigating circumstances.”

Such disagreement on an issue between the Benches of the HC has been witnessed in many cases. Similar, disagreement exists between the Benches of the AD in cases dealing with Section 57 of the Penal Code. In Rokeya Begum vs. State [4 (2015) SCOB (AD) 20 ], the Division stated, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. Whereas, in Ataur Mridha and Ors vs. the State [14 (2017) ADC 333], the Division per incuriam held, “life imprisonment within the meaning of section 53 read with section 45 of the Penal Code means imprisonment for rest of the life of the convict.”

Consequently, when such disagreements exist between the Benches of the Supreme Court no adequate guideline can be drawn for the lower courts and a gross miscarriage of justice is apparent.