Only judicial magistrates can run mobile courts and punish offenders for certain type of crimes, including unlawful assembly, eve teasing and food adulteration from now on, experts opine.
They, however, say a change may take place in the trial procedure of the mobile court following the High Court verdict that declared illegal the operation of mobile courts by executive magistrates.
Under the current system, an offender is punished by the mobile court instantly and he/she do not get chance to defend himself/herself in the mobile court.
Lawyers said instant trial and conviction of an accused by the mobile court is the violation of the right to self-defence guaranteed by the Constitution.
They said the High Court verdict will put an end to the instant trial system.
Shah Monjurul Hoque, a senior lawyer of the Supreme Court, said, “[Only] judicial magistrates can run mobile courts [following the HC verdict]. But there may be some changes in the mode of operation.We have to wait for the full text of the verdict to know about the observation of the HC, which is likely to explain as to how mobile court will function.”
However, he said the relevant law may require amendment for running mobile courts in future.
Under the existing law, about a dozen judicial magistrates are running mobile courts under Dhaka South and North City Corporations.
The other offences which fall under the jurisdiction of the mobile court include public nuisance, smuggling, illegal electricity, water and gas connections, and hoarding of essentials.
Senior lawyer Manzill Murshid said judicial magistrates can run mobile courts to punish offenders with jail and fine.
“Nobody, except judicial magistrates and judges, can award jail to any offender,” he opined.
Murshid believes executive magistrates still have the authority to fine an offender following the HC verdict.
“As all sections of the Mobile Court Act 2009 have not been declared illegal, executive magistrates can fine an offender. But if an offender deserves jail, he/she has to be tried and punished by a judicial magistrate,” he said.
Terming instant trial system ‘basic flaw of the mobile court’, he said a change in the mobile court trial procedure may take place allowing the offender to defend him/her and witnesses to adduce evidence to ensure fair justice.
On Thursday, the High Court declared illegal the operation of mobile courts, trials and judgments by the executive magistrates.
Following the verdict, the executive magistrates will not be able to conduct mobile court and award jail to any offender.
An HC division bench comprising Justice M Moinul Islam Chowdhury and Justice Ashish Ranjan Das passed the order on Thursday following three writ petitions.
Various persons, who were earlier punished by the mobile courts, filed writ petitions with the High Court challenging the authority of the executive magistrates to convict them.
Earlier, the Supreme Court in its judgment in Masder Hossain case directed the government to separate the judiciary from the executive organ of the government.
In the light of the verdict, the caretaker government led by Dr Fakhruddin separated judiciary. Since then, magistracy was split into two wings being executive and judicial. Executive magistrates are a part to administrative organ of the government instructed with carrying out administrative functions of the government while judicial magistrates are part of judicial service entrusted with trying cases and passing judgment. Executive magistrates lost their judicial horn. But they were allowed to run mobile court and punish petty offenders.
Earlier on October 18 in 2016, the High Court ordered a judicial inquiry into sentencing schoolboy Sabbir Shikder from Sakhipur, Tangail, for allegedly threatening the local lawmaker by posting a comment on Facebook and acquitted the ninth-grader from the charge.
On November 28 last year, the HC ruled that a mobile court cannot convict or sentence any arrestees or detained person for an offence without due procedure of law.
In the full text of its verdict that had declared the sentencing of a Tangail schoolboy by a mobile court illegal, the HC made such observation.
Cognisance of the offence has to be taken by the magistrate concerned instantly on the spot and lodgement of written complainant with the magistrate is not at all required, it observed.
The court also said, “----the magistrate who is empowered for holding a mobile court under the Mobile Court Ain, 2009 must take cognisance of the alleged offence instantly at the spot provided the same has been committed or unfolded in his presence and the said magistrate is also empowered to convict the accused and award the prescribed sentence to him if he pleads guilty.”
But the situation has changed following the latest verdict of the HC that said the executive magistrates will not be able to run mobile court and award imprisonment to an accused.