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The unusual case of Mainul Hosein

  • Published at 02:11 am October 25th, 2018
File photo of Barrister Mainul Hosein being taken to a Dhaka court Mahmud Hossain Opu/Dhaka Tribune

Currently, Mainul is facing at least 11 cases after calling journalist Masuda Bhatti 'characterless' on a talk show aired live on a private TV channel on October 16

The cases against Barrister Mainul Hosein, a former adviser to the last military-controlled caretaker government, are ‘unusual’ for many reasons - the hurried process of filing of cases, issuance of warrant, and denying him bail in a bailable offense, said legal experts.

Currently, Mainul is facing at least 11 cases after calling journalist Masuda Bhatti “characterless” on a talk show aired live on a private TV channel on October 16.

Mainul’s verbal attack on Masuda started right after she said that many were calling him the Jamaat-e-Islami representative in Jatiya Oikya Front, as he recently attended an Islami Chhatra Shibir program, and asked whether it was true.

Mainul, also the publisher and editorial board chief of the Daily New Nation, was sent to jail after a Dhaka court rejected his bail petition and sent him to jail in a defamation case filed with a Rangpur court on Monday. He was arrested late Monday night by the Detective Branch of police in Uttara, Dhaka.

Law Minister Anisul Huq said any woman filing a case cannot be considered third party in this particular issue. 

“The statement by Mainul is insulting to entire womankind. On that note, any woman can say they have been defamed and can file a case.”

Rejecting claims made by the BNP, Anisul said the cases or arrest of Mainul are not politically motivated as “he insulted women and is facing punishment for that.”

Legal expert Dr Shahdeen Malik said a defamation case can only be filed by a person who is directly affected by any incident, which was not followed in this particular case.

“As journalist Masuda Bhatti has already filed a defamation case, the law does not allow anyone else to file other defamation cases if they are not directly affected,” said Supreme Court lawyer Malik.

‘Procedures not followed’

Shahdeen Malik said the court shall summon an accused with a notice to appear before a court on a certain date, before the issuance of a warrant.

“The court will issue a notice to the accused. If he fails to appear in the court on the given day, an arrest warrant can be issued in his name. But it usually takes two days,” he said.

The lawyer pointed out that this was not followed in the case of Mainul.

Mainul was arrested in a case filed by a Rangpur human rights activist. The court, after recording the plaintiff’s statement, issued an arrest warrant against Mainul.

“If you see the case, the warrant was issued on the first day, and Mainul was arrested within six hours,” he said.

“It was too hurried, it was a targeted arrest,” said Shahdeen.

Dhaka University law Professor Asif Nazrul said criminal law allows anyone to file a case, but if it is filed in court, the plaintiff needs to produce evidence that they were directly damaged from the incident.

“But none of the plaintiffs in the cases, except Masuda Bhatti, is the aggrieved person here.”

“It is not logical, not usual,” said the DU teacher.

‘Bailable case, minor offense’

According to Bangladesh law, defamation is a bailable offense.

On Tuesday, during bail hearing at a Dhaka court, Mainul’s lawyer Khandaker Mahbub Hossain argued that the plaintiff in the case in which Mainul was arrested, is not an aggrieved person.

Mahbub argued that Masuda Bhatti had already filed a case and thus the Rangpur case was not maintainable.

“All these other cases should be rejected outright. Also this is a bailable offense, and there cannot be any legal basis to refuse his bail,” said Shahdeen.

Asif Nazrul thinks the case against Mainul has taken a very unusual course.

“Defamation is one of the most minor crimes as per the Penal Code, where the maximum penalty is two years. It is very unusual to issue a warrant in such a minor case,” he said.

The editor of a leading daily newspaper was sued in multiple defamation cases, but no warrant was issued against him, Asif pointed out.

“But the issuance of warrant, Mainul’s arrest and his rejection of bail plea could not have been this fast if there were no strong influences,” he added.

“Sending someone to jail in bailable cases is nothing but harassment. He was arrested so hurriedly, and was not given any time, and was denied bail,” said Sanaullah Mia, one of the lawyers who moved the bail plea on Mainul’s behalf at Tuesday’s court.

What the law says about defamation

Section 499 of the Penal Code, defines defamation as: “Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation or such person, is said, except in the cases hereinafter excepted, to defame that person.”

It is a bailable offense as per law.

Section 500 of the code says whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

CrPC bars third parties from defamation cases

Section 198 of the Code of Criminal Procedure 1898 imposes a bar on filing defamation cases by a third party.

“No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence,” says section 198 of the procedure.

The exception to this provision says a third party may file a complaint on the aggrieved person’s behalf “where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint.”