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Saturday, March 16, 2013

Jurisdiction or Power and Function of Appellate Division.

Appellate Division is the first higher court of Supreme Court and also Bangladesh. The function of this division is to hear and determines appeals from the judgment or decree of the High Court Division. And Appellate Division has no original jurisdiction (as a court of first instance). The jurisdictions of Appellate Division are described in below

Jurisdiction of Appellate Division:
The source of jurisdictions of the Appellate Division are broadly divided into two heads as like as the High Court Division—
                             i.            Jurisdiction under the power of ordinary law.
                           ii.            Jurisdiction under the power of Constitutional law.

o   Jurisdiction under the Power of Ordinary Law:
Ordinary jurisdiction of Appellate Division is only appeal jurisdiction. Ordinary laws can give the Appellate Division only appeal jurisdiction according the Article 103(4) of the Constitution. This Article provides
“Parliament may declare by law that the provision of this Article shall apply in relation to any court or any tribunal as they apply in relation of High Court Division”
By the Act of Parliament, parliament may declare an appeal of judgment or decision of any court or any tribunal grant by the Appellate Division on following two conditions:-
                          i.            Appeal as of rights.
                        ii.            If the Appellate Division grants leave to appeal.
For example: Section 6A of the Administrative Tribunal Act, 1980 provides that appeal may be preferred to the Appellate Division against the decision of the Administrative Appeal Tribunal by way leave petition.

o   Jurisdiction under the Power of Constitutional Law:
The Constitution itself provides some jurisdiction for Appellate Division of Supreme Court. The jurisdictions of Appellate Division under the power of Constitution are following four types:-
1.      Appellate Jurisdiction.
2.      Jurisdiction as to Issue & execution of process.
3.      Jurisdiction as to Review.
4.      Advisory Jurisdiction.

1.     Appellate Jurisdiction:
Appeals only against the judgment, decree, order or sentence of the High Court Division as stated in the Article 103. Such jurisdiction has two dimensions:

(a)   Appeal as of right. Under Article 103(2) of the Constitution an appeal to the Appellate Division from the judgment or decision of the High Court Division lies as of rights in the following three cases: e.g., interpretation of the Constitution needed for a substantial question of law [103(2)(a)], death sentence or life imprisonment [103(2)(b)]; or punishment for contempt of court [103(2)(c)].  

(b)   Appeal can be made if the Appellate Division grants leave appeal. In all other cases except these three case appeals shall lies from the judgment, decree order or sentence of High Court Division only if the Appellate Division grants leave to appeal. 

2.     Jurisdiction as to Issue & execution of process:
This power of the Appellate Division is also called power to do complete justice. Article 104 of the Constitution provides that the Appellate Division shall have power to issue such orders necessary for doing complete justice in the case raised.
a.      This is a discretionary power.
b.      Appellate Division nay use this power suo motu or on the application of the any party
This power is discretionary and extra-ordinary in nature. This power has not been limiting by any words of Constitution & no attempt has been made to define or describe ‘complete justice’. 

3.     Jurisdiction as to Review:
Jurisdiction as to review under Article 105 of the Constitution, this article empowers the Appellate Division to review its own judgment or order, but subject to:-
a.      The provision of the Act of parliament.
b.      This rules made by the Appellate Division.

4.     Advisory Jurisdiction:
Article 106 of the Constitution provides the advisory jurisdiction of Appellate Division. The President (head of the state) may seek opinion of the Appellate Division on question of law & question of public interest but not question of fact. It is discretionary for the Appellate Division to express its opinion, not obligatory, Appellate Division is not bound to give his opinion. This situation was happen in Bangladesh only one time in after independence. This is an extremely rare situation in Bangladesh, on 4th July 1995.