Penal Code, 1860
Section—1 It lays down that the Penal Code extends only to offences committed in Bangladesh and not to offences committed outside Bangladesh. Abdul Haque Vs. The State, 14BLD(HCD)204
Section—21, Clause 12
Principal of a private College is not a public servant
Clause 12 of section 21 of the Penal Code provides that every person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of public duty is a public servant. Public duty is one which is created and conferred by law by which an individual is vested with some portion of the sovereign function of the Government to be exercised by him for the performance of the duty for the term and tenure prescribed by law. There is no such law in the instant case and as such the petitioner cannot be said to perform public duty and called a public servant. Md Matiur Rahman Vs The State, 19BLD(HCD)607 Ref: 30DLR(SC)127; PLD1964 Dhaka 330; A1R1957(SC)13 and A1R1918 Lahore 1
Section 21-The two provisions have only to be looked at by side to be sure that more people can now be called public servants for the purposes of the anti- corruption law. Anti-Corruption Commission vs Md Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242
Section 21-Section 21 may generally signify any person duly appointed and invested with authority to administer any part of the public duty imposed by law, whether it be judicial, ministerial or mixed. Bangladesh Biman Airlines Limited vs Captain Mir Mazharul Huq, 70 DLR (AD) 16
Section 21-A person may be declared to be public servant by a statute but such declaration would not necessarily make him a public servant within the meaning of section 21, though he will be a public servant for other purposes in accordance with the provisions of the statute. A public servant need not necessarily be appointed by the government. Bangladesh Biman Airlines Limited vs Captain Mir Mazharul Huq, 70 DLR (AD) 16
Section 21-It will frustrate the very purpose of separation of powers if a Member of Parliament is treated a public servant. Zakir Hossain Sarkar vs State, 70 DLR 203
Sections 29, 361-365— A careful reading of sections 29, 463 and 464 of the Penal Code together would clearly show that a false document must have been actually made and that mere taking of a signature on a blank paper without writing anything on that paper does not make it a document. Since the complainant petitioner did not disclose the nature of the document allegedly created the allegations made do not constitute the offence under section 465 of the Penal Code and as such the impugned proceeding is liable to be quashed. Syed Khalilulla Salik alias Juned vs Haji Md Rahmat Ullah vs State 49 DLR 16
52—distinguishable
Section—34
Common Intention
This section-does not create any distinct offence. It is intended to meet a case where the members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually ‘Common intention’ within the meaning of this section pre-supposes a prior concert. There must be a prior meeting of the minds leading to a pre-arranged plan to commit an offence. The common intention to commit the offence invites the application of section 34 of the Penal Code. In offences involving physical violence, the presence of the accused at the scene of the occurrence renders him liable on the principle of joint liability but where the offence consists of diverse acts and it may be committed at different times, the presence of the accused at the scene of the occurrence is not necessary. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53 Ref: 44DLR 83; A.I.R.l957(SC)381; 16 DLR(SC) 94; 16 DLR (Dhaka) 189; 29DLR (SC)271; A.I.R. 1978 (SC) 1248; A.I. R. 1939 (Cal) 65; A.I.R. 1929 (Bombay) 327; PLD 1957 (West Pakistan) Lahore, 956; A.LR. 1946 (Sind) 43; 12DLR (SC) 217; 27 DLR (AD) 29; 44 DLR (AD) 10; A.I.R. 1952 (SC) 474; A.1.R. 1976 (SC) 2027—Cited
Joint Liability
The essence of joint
liability is to be found in the existence of a common intention animating the accused
in the doing of a criminal act in furtherance of such intention. To attract the
application of the section, it is necessary to establish: (1) a criminal act
was done by several accused persons, (2) all of them intended the commission of
the offence and (3) the offence was committed in furtherance of the common
intention of all the accused persons-Penal Code S. 34
AbulKalam Azad Vs. The
State, 14 BLD (HCD) 401
Ref: PLD 1950 (LAHORE)90;
14 BLD (1994)33: 40DLR443-Cited
Section—34
Under section 34 of the Penal Code the essence of joint liability is to be found in the existence of a common intention animating the accused in the doing of a criminal act in furtherance of such intention. Before application of this section to a case, it must be shown: (a) a criminal act was done by several persons, (b) all the accused intended the commission of the offence and (c) the criminal act was done in furtherance of the common intention of all. Abul Kalam Azad Vs. The State, 14BLD (HCD) 401
Section 34 The convict was present at the time of occurrence and took part in the killing of the victim by standing guard while, according to him, other accused persons killed the victim. He not only stood guard but also took part in the jubilation along with all the other assailants. It, therefore, cannot be said that the confes- sion was exculpatory, or that the common intention to kill the victim was absent in the case of the petitioner. Mishon Chandra Das vs State, 68 DLR (AD) 392
Section 34-When the accused himself admits to his own complicity in the commission of the offence, even though he did not take part in the violence which to led to the death of the victim, he cannot escape his liability which is imputed upon him by section 34 of the Penal Code. Clearly the petitioner and the co-accused all went to the place of occurrence with the common intention of killing the victim, and he took part by standing guard while the others dealt the fatal blows. Mishon Chandra Das vs State, 68 DLR (AD) 392
Section 34-Each and every incriminating circumstances must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. State vs Monir Hossain, 65 DLR 455
Section 34-Actively participated in the killing in furtherance of common intention, which is enough to bring him under the preview of section 34 of the Code. State vs Zalal @ Zillu, 66 DLR167
Sections 34, 35, 302 and 304-Each case should be decided on the facts proved by the prosecution and no case can be an authority on facts. Whether the accused does have previous consent or common intention or particular knowledge depends upon the facts proved by the prosecution. It is always a question of fact as to whether the accused shared a particular knowledge or intent. In deciding the said question, one must look for a common intention and what that intention is. Khalil Peada vs State, 70 DLR (AD) 126
Section 34 and 120B-If on an analysis of the evidence on record if it is found that the prosecution has proved that there was conspiracy to kill the leaders and in pursuance thereof, the killing was perpetrated, all accused persons could not avoid criminal liability. If, however, the evidence of record proved that there was no conspiracy but, the killing was committed by several persons in furtherance of common intention of all, all the accused persons cannot be convicted because the common intention requires participation in the crime. (SK SINHA, JAGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Section 34,148,302,326,448
The law is now settled that mere relationship
of the witnesses inter-see or of being related to the deceased does not make
them unreliable unless material is brought on record to consider the wit-
nesses of this category is unreliable. The State, represented by the Deputy
Commissioner, Chittagong vs. Md. Manzurul Alam (Syed J.R. Mudassir Husain CJ)
(Criminal)4ADC 351
Section 34.304,302
Accused petitioner along with others
assaulted aforesaid Bhabaranjan, calling him a cow lifter as a result of which
he died. Abdur Rouf Sarder vs. The State (Amirul Kabir Chowdhury J) (Criminal)
4ADC 800
Sections—34 and 149
Sections 34 and 149 of the Penal Code are two distinct and separate offences with different ingredients. Section 34 of the Penal Code involves a direct overt act on the part of the accused sharing a ‘common intention’ with others for the commission of an offence while section 149 of the Penal Code is essentially a vicarious liability for being a member of an unlawful assembly with the ‘common object’ of committing the offences. These two offences are of different nature. Abu Talukder Vs The State, 19BLD (HCD) 225
Sections—34 and 149
Common intention is an intention to commit the crime actually committed and each accused person can be convicted if he shared the common intention. The common intention contemplated by this section is anterior to the commission of the crime and it does not refer to the time when the offence is actually committed. A person cannot be found guilty under section 148 of the Penal Code unless he carried with him a dangerous weapon. A general statement that the accused persons were armed with dangerous weapons like dhal, katra, lathi and sorki is not sufficient to warrant a conviction under this section. Nurul Haque Matbar and others Vs. The State, 14BLD(HCD)178
Sections—34 and 149
Section 34 applies in a case where a criminal act is done by two or more persons in furtherance of the common intention of all while section 149 applies in the case of a member of an unlawful assembly when a criminal act is committed by any member of the unlawful assembly in prosecution of the common object of that assembly. Ataur Rahman and others Vs. The State, 14BLD(HCD) 391 Ref: 37 DLR 157—Cited
Section 34 – Joint liability
Unless there is participation of the accused in the commission of the offence in furtherance of their common intention, section 34 is not attracted. Mere presence in or near the scene does not make the person liable under section 34 of the Penal Code. Aminul Islam and others Vs. The State 12 MLR (2007) (HC) 21. Penal Code, 1860 Section 109 – offence of abetment Prevention of Corruption Act, 1947 Section 5(2) – Punishment for criminal misconduct Criminal Law (Amendment) Act, 1958 Section 9 – Provides for confiscation of property to the extent connected with the offence When the charges under section 5(2) of the Prevention of Corruption Act, 1947 read with section 109 of the Penal Code Penal Code, 1860 are established section 9 of the Criminal Law (Amendment) Act, 1958 imposes a duty upon the trial judge whether he imposes a sentence of imprisonment or not, he shall impose a sentence of fine and pass an order confiscating the property of the accused connected with the offence. The apex court held that the confiscated property cannot be restored to the offender. M.A. Sattar and others Vs. The State 14 MLR (2009) (AD) 168.
Section 34—
The essence of joint liability is to be found in the existence of a
common intention animating the accused in the doing of a criminal act in
furtherance of such intention. Before
application of section 34 of the Penal Code to a case, it must be shown that
(1) a criminal act was done by several persons, (2) all of them intended the
commission of the criminal act and (3) the criminal act was done in furtherance
of the common intention. In the instant case it is not clear that except
accused appellant Abul Kalam Azad, the other accused had the intention of
causing such bodily injury as was likely to cause the death of Abdul Wadud and
even the participation of the other accused in causing death of the deceased is
not free from doubt. Abdul Kalam Azad vs
State 47 DLR 317.
Section 34—
This section does not create any distinct offence. It is intended to
meet a case where the members of a party acted in furtherance of the common
intention of all but it was difficult to prove exactly the part played by each
of them. In means that if two or more
persons intentionally do a thing jointly, it is just the same as if each of
them had done it individually, common intention within the meaning of this
section pre-supposes a prior concert. There must be a prior meeting of the
minds leading to a pre-arranged plan to commit an offence. The common intention
to commit the offence invites the application of section 34 of the Penal Code.
In offences involving physical violence, the presence of the accused at the
scene of the occurrence renders him liable on the principle of joint liability
but where the offence consists of diverse acts and it may be committed at
different times, the presence of the accused at the scene of the occurrence is
not necessary. State vs Tajul Islam 48
DLR 305.
Section 34— Unless there is meeting of minds
between the accused as to the commission of crime of common intention, the
application of section 34 of the Penal Code is improper. Abdul Khaleque and others vs State 48 DLR
446.
Section 34, 109 & 149— For application of
section 34 some overt act by each of the accused is necessary in the commission
of the crime by two or more persons but in the case of application of section
149, if one is found to be a member of the unlawful assembly for the commission
of the crime, whether he takes active part in it or not, he comes within its
mischief, and so far as section 109 is concerned, it is simply for abetment of
the offence committed. Now, in the
instant case, according to the prosecution, all the accused planned to commit
the murder of the victim and towards that end they started acting and then all
together in a joint action with common intention caused the murder of the
victim. So, in such circumstances, it is not understood why section 34 will not
be attracted in this case, when allegation is to the effect that each one of
the accused persons took part in the commission of the alleged crime of murder
of the victim Kalam. The question is whether the prosecution has been able to
prove the allegation by evidence is a different one. We, therefore find no
illegality in framing the charge against the accused under sections 302/34 of
the Penal Code apart from other sections of law. Abdul Khayer and 3 others vs State 46 DLR
212.
Sections 34 and 149— Section 34 of the Penal Code involves a
direct overt act on the part of the accused sharing “a common intention” with
others for the commission of an offence while section 149 is essentially a
vicarious liability for being a member of an unlawful assembly with the “common
object” of committing the offence. These two offences are of different nature. Abu Talukder vs State 51 DLR 188
Section 34, 109, 1208, 149, 302, 324
On behalf of the respondent Government
affidavit - in - opposition was filed in which the allegations and submissions
of the appellants were denied and it was asserted, inter alia, that the killing
of the President of the country along with the members of his family and others
including women and children at different places could not be said to be
necessary for change of Government on the 20th August 1975, that the said
killings were offences which no law can indemnify nor has indemnified, that no
provision of the Constitution had made Indemnity Ordinance 1975 a part of the
constitu- tion, that paragraphs 3 A and 18 of the Fourth schedule have not
curtailed the power of Parliament of repeal any Act of Parliament or Ordinance
made during the period between the 20th August, 1975 and the 9th April, 1979,
that sever- al Ordinances made during the said peri- od have been repealed
either by Ordinance or by Act of Parliament and that the indemnity Ordinance
not being a part of the constitution but an ordinary Law, the repeal thereof
does not attract article 142 of the constitution and that the Indemnity
Ordinance has been Validly repealed by the Indemnity (Repeal) Act, 1996 which
is valid and constitutional. Shahriar Rashid Khan ors. (1) vs Bangladesh ors.
(1) (A.T.M. Afzal CJ) (Civil) 2ADC 181
Section 34- Common intention- Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. Common intention implies pre-arranged plan. Under Section 34 IPC...... Sudip KR. Sen VS= State of West Bengal, [1 LM (SC) 605]
Section 34- Each criminal trial is but a quest for search of the truth. The duty of a judge presiding over a criminal trial is not merely to see that no innocent person is punished, but also to see that a guilty person does not escape. One is as important as the other. Both are public duties which the Judge has to perform. The trail court had erred and misappreciated the evidence to arrive at an erroneous conclusion. In any event the High Court has not ascribed any special reasons for the same. We are therefore unable to sustain the direction for denial of remission to the appellant for twentyfive years and set aside the judgement to that extent only. Consequentially we find no merit in the appeal except to the extent indicated. The appeal is allowed only to the extent indicated.......Smt. Shamim VS State (Gnct of Delhi), [5 LM (SC) 107]
Section 34 & 307- Undue sympathy leading to imposition of inadequate sentence would do more harm to the justice system and would undermine public confidence in the efficacy of law- Prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC. Undue sympathy leading to imposition of inadequate sentence would do more harm to the justice system and would undermine public confidence in the efficacy of law. The appellant appears to have got off lightly, we see no reason to interfere in the concurrent Judgments under Article 136 of the Constitution of India. Chhanga =VS= State of M.P., [3 LM (SC) 58]
Section 34 The 'common intention' which is a constituent of proving an offence of criminal conspiracy is different from the one 'common intention' used in section 34 of the Penal Code. The expression 'common intention' used in section 10 of the Evidence Act signifies a common intention existing at the time when the thing was said, done or written by one of the conspirators but the 'common intention' referred to in section 34 is doing of separate acts similar or diverse, by several persons; if all are done in furtherance of a common intention. ... (Surendra Kumar Sinha, J). .....State =VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Section 34- If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code- The High Court Division on a misconception of law held that the prosecution has failed to prove the conspiracy. From the evidence as discussed above, if there be any doubt about the conspiracy, it would be difficult to find out a suitable case to prove such charge. The facts found from the materials on record, the barbarity revealed in the commission of the crime and the seriousness of nature of the offence perpetrated by the accused, it would be a travesty irony if the accused persons are not convicted on the charge of conspiracy. With due respect I am unable to endorse the majority opinion that the accused-respondents cannot be convicted on the charge of criminal conspiracy. The question of the benefit of law does not arise at all for simple reason that they were charged with and defended of the charge of criminal conspiracy. If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code but their conviction would be one under sections 120B read with 302, not under sections 302/34 of the Penal Code.... (Surendra Kumar Sinha, J) (Minority view)...... State VS Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Section 34 Common intention- Once a reasonable ground exists to believe that two or more persons have conspired together to commit an offence, anything said, done or written by one of the conspirators in reference to the common intention after the common intention was entertained, is relevant against other, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. Principles of joint liability mere distance from the scene of crime cannot exclude culpability under Section 34 of the Penal Code in criminal sharing making out a certain measure of jointness in the commission of the act. (Per Md. Tafazzul Islam, J) Major Huda(Artillery)=VS-The Md Bazlul State(Banga Bandhu Murder Case), [9 LM (AD) 386] Section 34 Intention The word 'intention' implies that the act intended is in the future, and the action makes the relevant statements made up by a conspirator with reference to the future. Anything said, done or written by any of the conspirators is admissible under this section, if it is in reference of their common intention, even though it is not in furtherance of their common design. Accordingly anything said, done or written by a conspirator after the conspiracy was formed will be evidence against other conspirators whether it was said, done, or written before, during or after the other conspirators participated in the conspiracy. When specific acts done by each of the accused have been established showing their conviction with their common intention, they are also admissible against other accused. (Per S. K. Sinha, J) ...Major Md. Bazlul Huda(Artillery)=VS-The State(Banga Bandhu Murder Case), [9 LM (AD) 386] Section 39 and 491- Section 39 of the Penal Code defines the term voluntary, means a willful omission to attend on the employer. Such willful omission must arise from something more than mere careless or negligence. It must be an omission of which the employee is conscious though he may not advert to the consequence. The legal contract must take shape of service for the helpless master or employer, for example, a curator of a lunatic, or a doctor and a nurse employed in the hospital, who may render himself liable to the penalty under this section if he agreeing to look after the patient, voluntarily deserts the patient or omits to attend the patient. The complainant was not the one who is neither a lunatic nor a bodily incapable person or has been suffering from a disease for which he has entered into a contract with the appellant to take care of him and in that view of the matter, the offence alleged in the complaint does not attract section 491 of the Penal Code...... Prof. Dr. Motior Rahman VS The State & another, [1 LM (AD) 587] 1. Imprisonment for life prima-facie means imprisonment for the whole of the remaining period of convicts natural life. 2. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure. 3. However, in the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code of Criminal Procedure. Considering the facts and circumstances, the sentence awarded to the review petitioner is modified to the extent that he is sentenced to suffer imprisonment for life and to pay fine of taka 5000/-, in default, to suffer rigorous imprisonment for 2(two) months more. (Majority view: Per Hasan Foez Siddique, J. Author Judge)....Ataur Mridha VS The State. [10 LM (AD) 527]
Sections 96-104—
The onus of proving right of private defence lies on the accused
claiming exercise of such right. Sarwar
Kamal and others vs State 48 DLR 61.
Sections 96-106—
The right of private defence of the body extends to the voluntary
causing of death if the offence which occasions the exercise of the right is an
assault which may reasonably cause the apprehension of either death or grievous
hurt. Khandoker Saiful Islam vs State 50
DLR (AD) 126
Sections—99 and 100
Right of private defence of person even extends to causing of death when there is a reasonable apprehension that the intended assault by the aggressor would cause death or grievous hurt. But no right of private defence of person is available against an unarmed man. Dalim and another Vs. The State, 15 BLD (HCD) 133
Right of private defence
When the fear of
retaliation from the deceased party overpowers the mind of the accused it is
not possible for him to weigh the situation in golden scales. In such a
situation when he is faced with assaults from the rival party it is not
unnatural for him to strike a decisive blow to defend himself and to free
himself from the clutches of his adversaries. In the instant case, attending
circumstances indicate that accused Ruhul Amin gave the knife blow only to free
himself from the grip of deceased Moktar Ali. Under the circum- stances, the
accused cannot be said to have exceeded the right of private defence-Penal
Code, 1860 (XLV of 1860) Section. 100
Ruhul Amin Mondal Vs. The
State, 16 BLD(HCD)91
Section—100
Right of private defence—When it extends to causing death? When the accused had scuffles with the deceased sometime before the occurrence and the fear of retaliation from the deceased party overpowers the mind of the accused, it is not possible for him, whose mental excitement can be better imagined than described, to weigh the position in golden scales. In such a situation when he is faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of private defence. The accused can not be said to have exceeded the right of self-defence. Ruhul Amin Mondal Vs. The State, 16BLD(HCD) 91
Section 100—
Right of private defence—When the accused had scuffles with the deceased
and the fear of retaliation from the deceased party overpowers the mind, it is
not possible for him to weigh the position in golden scales. In such a
situation when he is faced with assaults from his rival party it is not unnatural
that he would strike a decisive blow to defend himself and to free himself from
the clutches of his adversaries. In the
instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar
Ali and then ran away. The attending circumstances indicate that he gave the
knife blow only to free himself from the grip of deceased Moktar Ali and ran
away for safety. This conduct of the accused satisfies the legal requirement of
the right of private defence. The accused cannot be said to have exceeded the
right of self-defence. Ruhul Amin Mondal
vs State 49 DLR 250
Section 102B/302/34
While the victim was being teken to the local hospital for treatment, on the way he died on. Charge-sheet against 15 accused-per sons including the leave-petitioners under Section 120 B/302/34 of the Penal Code. Amirul Islam and others vs. The State and another (Syed J.R. Mudassir Husain CJ) (Criminal)4ADC 175
Section 107, 109 and 120B- In order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy Offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place inpursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it.... (Surendra Kumar Sinha, J). ... State VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]
Sections 107 and 109-Since the petitioner is a beneficiary of the illegal transaction and he has an engagement in the illegal transaction, a prima-facie allegation of abetment regarding manipu- lation of the tender for sale of the abandoned properties has been disclosed against the accused-petitioner The prose- cution should not be debarred from proving the allegation of abetment by evidence which may be oral, documentary and circumstantial in nature. Ali Haider Chowdhury vs State, 65 DLR 116
Sections 107 and 109-Whether the petitioner had any role in the illegal transaction or whether he abetted the principal accused in manipulating the tender for sale of the case properties and whether the petitioner is a bonafide purchaser for value are all disputed questions of fact which may be resolved on taking evidence by the trial Court. Ali Haider Chowdhury vs State, 65 DLR 116
Sections 107 and 109-Abetment is an offence which may be inferred from the conducts of the accused and circumstances of the case. It may be proved either by oral and documentary evidence or by circum- stantial evidence. Ali Haider Chowdhury vs State, 65 DLR 116
Sections 107 and 111-The definition of abetment given in section 107 of the Code includes not merely an instigation which is the normal form of abetment but also includes other forms of abetment as contemplated in the proviso of section 111 of the Code. In order to find any person guilty of the offence of abetment it must be shown that he instigated the person who committed the offence or that there was an agreement to commit the offence between him and the person committing the offence. State vs Monir Hossain, 65 DLR 455
Sections 107, 302 & 109-There was rivalry between deceased Moulana Abdul Quader and accused Mobile Quader and his brother-Lawrence over Mamar Bazar at Dugachhi, Kum beneath the bridge near Mamar Bazar and the Chairmanship of the Managing Committee of Kazir Pagla High School and that unerringly proved the motive behind the killing of Moulana Abdul Quader and that is a very strong circumstance also to infer as to the involvement of accused Mobile Quader with the killing of deceased Moulana Abdul Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6
Section 109-Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. Anti-Corruption Commission vs Tasmima Hossain, 69 DLR (AD) 290
Section 109-Distinction of NIKO case-It appears from the confession of co- accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin-al-Mamun to ensure that the 'JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Act. The issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Act, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the 'JVA'. The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. The case is quite distinguishable from the other case which was already quashed by the High Court Division. Begum Khaleda Zia vs Anti-Corruption Commission, 69 DLR (AD) 181
Section 109-Abetment-Prima- facie allegation of abetment regarding manipu-lation of the tender for sale of the abandoned property has been disclosed from materials collected by the prosecu- tion. Therefore, the prosecution should not be debarred from proving the allegations of abetment by evidence which may be oral, documentary and circumstantial in nature. ACC vs Mehedi Hasan, 67 DER (AD) 137
Section 109-Abetment-Abetment is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence. ACC vs Mehedi Hasan, 67 DLR (AD) 137
Section 109-Abetment under section 109 of the Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. Begum Khaleda Zia vs ACC, 68 DLR 1
Section 109
Offence of abetement- In order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement there must be evidence that an act was abetted and that it was abetted by the person charged with. The act abetted must, moreover, amount to a crime, and in order to connect the abettor with the crime, it is not sufficient to prove that he had taken part in those steps of the transaction which are innocent, but it must also be proved that he had deliberately taken part in those steps of the transaction which constituted an offence. Section 109 may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by illegal omission.... (Surendra Kumar Sinha, J). .....State VS Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]
Section 109- Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. .....Anti-Corruption Commission =VS= Tasmima Hossain, [3 LM (AD) 9]
Section 109- The High Court Division has come to a finding that it appeared from the confession of co- accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin Al Mamun to ensure that the 'JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Prevention of Corruption Act, 1947. The High Court Division has held that in the instant case, the issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the JVA'. The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. Begum Khaleda Zia VS= Anti- Corruption Commission, [3 LM (AD) 177]
Section—109
Abetment
Abatement is an offence under the Penal Code and a person may be charged for abetting an offence punishable under a special law even though the word ‘abetment may not be mentioned as an offence under the Special Act. Hussain Mohammad Ershad, former President Vs. The State, 14BLD(AD)178 Ref: 44 DLR (AD) 215; 33DLR 379; 17 DLR (SC) 261—Cited
প্রধান অপরাধীকে যদি
কোনও
ধারার
অধীনে
শান্তি
দেওয়া
না
হয়,
তবে
ওইসব
ধারার
অপরাধে
সহায়তার জন্য
শান্তি
দেওয়ার
প্রশ্নই ওঠে
না।
[মোঃ
আলম
বনাম
রাষ্ট্র, ৫৪
ডিএলআর
(২০০২)
২৯৮।
Section 109, 111, 406, 420
It is a well-settled principle that a person who abets the actual perpetration of the crime at the very time when it is commit- ted is a principal of the second degree under section 109 of the Penal Code. This is applicable to the accused-importer. There is, however, no distinction between principal in the first degree' and 'princi pal in the second degree. Under section III of the Penal Code an abettor is liable for a different act if. Islami Bank Bangladesh Ltd. vs Muhammad Habib (Mohammad Gholam Rabbani J) Crminal) 2ADC 621
Section 120A and 120B- The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable.... (Surendra Kumar Sinha, J). ..... State VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]
Section 120A-Bazlu made the confessional statement after his arrest and that too after the alleged criminal cons- piracy culminated with the killing of deceased. So, the confessional statement of accused-Bazlu cannot be used as evidence against Mobile Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120A-Criminal conspiracy -Conduct of the accused both before and after the commission of offence is also relevant to prove the charge. No written or definite agreement is necessary to constitute a conspiracy-its existence being generally a matter of inference from the acts of the accused. It is sufficient to constitute the offence, so far as the combination is concerned, if there is a meeting of the minds, a mutual implied understanding or tacit agreement, all the accused working together, is with a single design, for the accomplishment of the common purpose. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120B-Criminal conspiracy -The circumstances before, during and after the occurrence about the complicity of the accused in the incident must be proved beyond shadow of doubt. The criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy for murder. Each one of the circumstances should be proved beyond reasonable doubt. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 120B-Conspiracy is done in secret. It is not possible to prove conspiracy by direct evidence. It has to be proved by circumstantial evidences. State vs Zalal @ Zillu., 66 DLR 167
Section 120B- Criminal conspiracy It is well settled that in order to prove a criminal conspiracy which is punishable under Section 120B of the Indian Penal Code, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference agreement between two or more persons to commit an offence." (Per Md. Muzammel Hossain. J) Major Huda(Artillery)-VS-The Md Bazlul State (Banga Bandhu Murder Case), [9 LM (AD) 386]
Section 120B- Criminal conspiracy-
This Court observed that a conspiracy is a matter of inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose common between them. A criminal conspiracy consist not merely intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect the very plot of act itself, and the act of each of the parties capable of being enforced, if lawful, possible if for a criminal object or for the use of criminal means. The elements of criminal conspiracy are (a) an agreement between two or more persons, (b) to do an illegal act, or (c) to do a legal act by illegal means, and (d) an overt act done in pursuance of the conspiracy. A charge of criminal conspiracy for an offence under section 120B of the Penal Code, the prosecution need not prove that the perpetrators expressly agree to do or caused to be done the illegal act; the agreement may be proved by necessary implication. ...Major Md. Bazlul Huda (Artillery) =VS= The State, [10 LM (AD) 581]
Section 120B-
Conspiracy or common design
In criminal law a party is not generally responsible for the acts and declarations of others unless they have been expressly directed, or assented to by him; "nemo reus est nisi mens sit rea". This section, however, is based on the concept of agency in cases of conspiracy. Conspiracy connotes a partnership in crime or actionable wrong. A conspirator is considered to be an agent of his associates in carrying out the objects of the conspiracy and anything said, done or written by him, during the continuance of the conspiracy, in reference to the common intention of the conspirators, is a relevant fact against each one of his associates, for the purpose of proving the conspiracy as well as for showing that he was a party to it. Each is an agent of the other in carrying out the object of the conspiracy and in doing anything in furtherance of the common design." (Per S. K. Sinha, J) ...Major Md. Bazlul Huda (Artillery)=VS-The State (Banga Bandhu Murder Case), [9 LM (AD) 386]
Section—120B
Criminal Conspiracy
Assembly at Bangabhaban on the occasion of oath taking ceremony took place after the occurrence of the previous night and the presence of the petitioner at Bangabhaban on the following day cannot by itself be a sufficient ground for even an inference for a criminal conspiracy. Her jubilation might be her husband but for that it cannot be said that she was in the conspiracy the result of moral support in the activities of her husband but for that it cannot be said that she was in the conspiracy. Mrs. Jobaida Rashid Vs The State, 17BLD(HCD)352 Ref: ‘Principles and Digest of the Law of Evidence’—By M. Monir; Queen Vs. Blake, 1844 6QB 126; 17 BLD (1997) 11; 17 BLD (AD)( 1997)54; 17BLD(AD)( 1997)163:2 BLC (AD) (1997) 75—Cited
Section 120B—
Jobaida’s jubilation might be the result of her moral support to the
activities of her husband (leading to bloodshed and political change) but for
that it cannot be said that she was in the conspiracy. Jobaida Rashid vs State, represented by the
Deputy Commissioner, Dhaka 49 DLR 373.
Criminal
Conspiracy
Petitioner's
jubilation might be the result of moral support in the activities of her husband
but for that alone it cannot be said that she was in the criminal
conspiracy-Section. 120B
Jobaida
Rashid Vs. The State, 17BLD (HCD)366 Ref: 27 DLR (AD) 29; 37DLR (AD) 139; 7 BCR
(AD) 143 Cited
Section 120B and 302/34 – Criminal conspiracy leading to commission of murder when established can be punished with the same sentence as in the case of principal accused. When charge of criminal conspiracy and murder of two judges are proved by convincing evidence beyond shadow of all reasonable doubt the conviction of the convict-petitioners and sentence of death are held by the apex court perfectly justified. The convict-petitioners who are the top leaders of the JMB a perverted Islamic militant group admitted their participation in the criminal conspiracy leading to the commission of murder of two judges at Jhalakathi having been found guilty of the offence charged with and having found them a serious threat to the life and security of innocent people have been sentenced to death. The High Court Division accepted the death reference and Appellate Division found no fault with the conviction and sentence and dismissed their petitions for leave to appeal. Shaiakh Abdur Rahman & five others Vs. The State. 12 MLR (2007) (AD) 80.
Hartal
If an assembly of five or
more persons takes a decision to observe hartal by them selves and their
associates, then the decision does not come under the mischief of fifth clause
to section 141 of the Penal Code. This decision does not contemplate holding of
any procession or picket or any activity or activities to implement the
decision. But if an assembly of five or more persons takes the decision to
observe hartal to be participated by the people at large so that their common
object is to compel others obviously by show of criminal force to do what they
are not legally bound to do, then the said assembly must be an unlawful
assembly according to fifth clause to section 141 of the Penal Code and the
members of that unlawful assembly are liable to be punished under section 143
of the Penal Code Consequently the processions or other activities in support
of or to force such hartal shall be unlawful assemblies. Similarly every assembly
of five persons or more to protest or to oppose hartal shall be an unlawful
assembly. Activities of the members of these assemblies shall be cognizable
offences according to their behaviour under the relevant sections contained in
Chapter VIII of the Penal Code. The State Vs. Mr. Md. Zillur Rahman and others,
19BLD (HCD) 303
Sections—141, fifth clause and 143
If an assembly of five or more persons takes a decision to observe Hartal by themselves and their associates, then the decision does not come under the mischief of fifth clause of section 141 of the Penal Code. This decision does not contemplate holding of any procession or picket or any activity or activities to implement the decision. But if an assembly of five or more persons takes the decision to observe hartal to be participated by the people at large so that their common object is to compel others obviously by show of criminal force to do what they are not legally bound to do, then the said assembly must be an unlawful assembly according to fifth clause of section 141 of the Penal Code and the members of that unlawful assembly are liable to be punished under section 143 of the Penal Code. Consequently the processions or other activities in support of or to force such hartal shall be unlawful assemblies. Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State Vs. Mr Md Zillur Rahman and ors., 19 BLD (HCD) 303
Sections 143/326
Section 498 of the Code of Criminal Procedure
before the High Court Division praying for bail and the High Court Division
after hearing the parties by the impugned judgment and order allowed hail.
Though some explanation has been given in the
First Information Report but it can not be denied that for an occurrence
alleged to have taken place on 03.08.2001 First Information Report has been
lodged on 20.04.2002/ 05.05.2002. In the First Information Report it appears
that allegations of similar kind have been alleged against accused Nos. 2 to 25
and the learned Additional Attorney General could not rebut the contention that
some of the aforesaid accused are enjoying bail and it cannot be said that the
respondents - do not stand on the same footing with those enjoying the
privilege of bail. More so it is also not denied that accused No.1 against whom
specific allegation of firing from the pistil has been laid, has been allowed
bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @
Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268
Section 143/326
Section 498 of the Code of Criminal Procedure
before the High Court Division praying for bail and the High Court Division
after hearing the parties by the impugned judgment and order allowed bail.
Though some explanation has been given in the
First Information Report but it cannot be denied that for an occurrence alleged
ged to have taken place on 03.08.2001 First Information Report has been lodged
on 20.04.2002/05.05.2002. In the First Information Report it appears that
allegations of similar kind have been alleged against accused Nos. 2 to 25 and
the learned Additional Attorney General could not rebut the contention that
some of the aforesaid accused are enjoying bail and it cannot be said that the
respondents do not stand on the same footing with those enjoying the privilege
of bail. More so it is also not denied that accused No.1 against whom specific
allegation of firing from the pistil has been laid, has been allowed bail. The
State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal
and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268
Section 147/148/341/323/307/373/365 and 34
That for an occurrence alleged to have taken
place on 21.07.2001 the First Information Report was lodged on 17.06.2002/
22.06.2002 and though the reason has been given in the First Information Report
but in fact the said reason appears to be false. He further submits that during
the time of alleged occurrence no political party was in power and a neutral
Care Taker Government was in power and as such there was no reason for refusal
of the police to register the case.
That the accused respondent and others have
been absolved of the charge under Sections 3 and 4 of the explosive sub-
stances Act. Regarding the allegation of offences under other Sections of the
Penal Code, he adds that there are alleations against some other co-accused of
assault, abduction and confinement of the informant but most of them are
enjoying bail.
That there was no ground for refusing the
bail by the High Court Division and hence the appeal is liable to be dis
missed. The State, Represented by the Deputy Commissioner VS. Md. Kamaluddin @
Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267
Section 147—
All the accused persons assembled to attack the informant. Though only
one accused Abdul Khaleque attacked the informant, other accused are also
guilty under section 147 because every member of an unlawful assembly is guilty
irrespective of whether he had any overt act or not. Bazlur Rahman Howlader alias Jilu and 3
others vs State, represented by the Deputy Commissioner 51 DLR 457.
Section 147, 148, 149, 323, 324, 326, 302,
427/34
Consideration the fact that there are major
contradiction and omission in the evidence of all the witnesses and that the
prosecution have failed to prove the time, manner and also the place of
occurrence by evidence and moreover the place of occurrence has also been
shifted from the back of the pond to the courtyard of the house. Further, the
trial court as well as the High Court Division failed to take into
consideration that all the prosecution witnesses are closely related to each
other and not a single impartial witness came to support the prosecution case
at trial even regarding the prayer for bail. Samar Uddin vs The State (Md.
Tafazzul Islam J) (Criminal) 3ADC 416
Sections 147/148/341/323/307/379/365 and 34
That for an occurrence alleged to have taken
place on 21.07.2001 the First Information Report was lodged on 17.06.2002/
22.06.2002 and though the reason has been given in the First Information Report
but in fact the said reason appears to be false. He further submits that during
the time of alleged occurrence no political party was in power and a neutral
Care Taker Government was in power and as such there was no reason for refusal
of the police to register the case. That the accused respondent and others have
been absolved of the charge under Sections 3 and 4 of the explosive sub-
stances Act. Regarding the allegation of offences under other Sections of the
Penal Code, he adds that there are allegations against some other co-accused of
assault. abduction and confinement of the inform- ant but most of them are
enjoying bail. That there was no ground for refusing the bail by the High Court
Division and hence the appeal is liable to be dismissed. The State, Represented
by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul
Kabir Chowdhury J) (Criminal) 4ADC 267
Sections 148/302/34/324/325/326/323- Criminal justice system is that if a single witness can prove direct involvement of the accused person in commission of an offence and if the same is believed or other circumstances support the prosecution case then conviction and sentence can be imposed. ... State VS- Sarafat Mondol @ Mander Mondol. [8 LM (AD) 362]
Section 148, 302/34, 326
Because the place of occurrence has been
shifted and in this respect witnesses have contradicted themselves.
........investigating officer did not seize any blood stained earth nor any
wheat plant to identify the place of occurrence. Habibur Rahman alias Habu vs
The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 398
Section 148/302/34
Who were assaulted by the dacoits and that
out of previous enmity the accused peresons have been implicated in the case
falsely.
P.W.1 Abdul Jalil, though an eye witness was
told of the occurrence by the victim at the hospital and accordingly he lodged
the First Information Report clearly mentioning the names of the petitioners
and others.
It appears that the trial court after con-
sidering the evidence of eye-witnesses including P.Ws. 2,3 and 4 passed the
impugned judgment and convicted the petitioners.
The High Court Division in its turn found
them guilty in consideration of evidence on record. However consider- ing the
facts and circumstances of the case the High Court Division took a lenient view
and altered the judgment of conviction and reduced the sentence of the
petitioners. There is nothing to inter- fere. Md. Asgar Ali alias Asgar and
oth- ers vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 897
Sections 148/304/34 – Charges against several accused need to be proved by specific evidence – When there is sharp contradiction in between the medical evidence and the ocular evidence as regards the number of injuries alleged to have been inflicted on the person of the deceased and the conviction and sentence are based on omnibus statements of the witnesses, the learned judges held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. the State 12 MLR (2007) (HC) 202
Section 148—
If both parties are found to have committed offence under section 148 of
the Penal Code none of them is entitled to be acquitted on the ground that the
other is the aggressor and in this respect law spares none. Bachu Miah vs Samad Miah and others 50 DLR
564
Section 149—
The two accused had no premeditation to kill the victim and as such the
application of section 149 for tagging them to face trial on murder charge
appears to/be illegal. State vs Khalilur
Rahman 48 DLR 184.
Section 148 & 307 r/w 149- Motive does not have to be established where there is direct evidence- The High Court has not at all dealt with the direct evidence of PW-1 and given the fact that such evidence has stood the test of cross-examination, we are constrained to observe that the view taken by the High Court is not a possible view and we therefore set aside the acquittal of the five accused persons and restore the conviction and sentence imposed upon them by the Trial Court. The respondents are directed to surrender before the concerned Court within a period of two weeks from today to serve out the remainder of sentence imposed by the Trial Court. ......Rajagopal =VS= Muthupandi, [3 LM (SC) 77]
Section 149, 148, 149, 323, 302, 447
That in case of any Judge of Magistrate or a
public servant, nor removable from his office save by order or with the sanction
of the Government, being an accused of any offence, while acting in the
discharge of his official duty, no court shall take cognizance of such offence
except with the previous sanction of the Government. We like to observe that
the two petitioners being members of the Police establishment, they are meant
for maintaining law and order in the country. But the offence they committed is
a heinous one and as such, in our opinion, they were rightly served by the
learned Additional Sessions Judge sentencing them to death and so no lenience
ought to have been shown to them. A. S. 1. Md. Ayub Ali Sardar vs The State
(Amirul Kabir Chowdhury J) (Criminal) 3ADC 663
Section—149
For applying section 149 of the Penal Code against an accused, three conditions must be fulfilled: (a) the accused must have been a member of the unlawful assembly at the time the offence was committed; (b) the offence must have been committed in prosecution of the common object, or (c) the offence must be such as the members of the assembly knew likely to be committed in prosecution of that object. Before applying section 149, the Court must have indubitable evidence that the members of the unlawful assembly constituted the statutory number of five, though some of them might not have been named, or identified, or brought to trial. Rafiqul Islam Vs. The State, 13BLD (AD)11 7 Ref: A.I.R.1953 SC 364; 1969 SCMR 537; AIR 1960 SC(290); AIR 1963 SC 174; AIR 1974 Sc 1567; A1R1975 SC 1917 (1921 and 1922); AIR 1978 sc 1233—Cited
Section 149—
When a particular offence is committed by an individual member of the
unlawful assembly, which was neither done in prosecution of common object of
the assembly nor other members of the assembly lenew that the offence would be
committed, other members of the assembly/cannot be held liable for the offence. The word “likely”, in the later part of
section 149 of the Code means some clear evidence that an unlawful assembly had
such a knowledge. In view of other offenses committed, such as criminal
trespass and assault, it is difficult to hold that all the appellants are
consecutively liable under section 149 of the Code when Appellant No. l Abdus
Sattar alone struck a Katra blow on the right side of the chest of deceased
which proved fatal and, strictly speaking, section 149 of the Penal Code is not
attracted in this case. There being overwhelming evidence of inflicting Katra
blow on deceased Aminul Huq by Appellant No. l, the appeal in respect of
Appellant No. l Abdus Sattar is dismissed and his conviction and sentence under
sections 302/149 of the Penal Code is altered to section 302 of the Penal Code
and his sentence of imprisonment for life is maintained. Abdus Sattar and others vs State 46 DLR (AD)
239.
Sections 161 and 165A-In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True, the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. Mia Nur- uddin (Apu) vs State, 68 DLR (AD) 290
Sections 161 and 167-Criminal misconduct- Section 5(1) of the Act defines criminal misconduct. Charge does not refer to misappropriation of money, but the words "above mentioned acts" contained in the charge necessarily imply the offence of criminal breach of trust. The charge specifically refers to the offences under sections 161 and 167 of the Penal Code. Mostafa Kamal vs State, 66 DLR 534
Section 161- A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications demands, thereby, or erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir. [3 LM (AD) 509]
Section 161 – Laying trap to catch hold of the accused red handed while taking bribe. Anti-Corruption Commission Rules, 2007 Rule 16 – To lay and conduct trap to catch hold of an accused red handed and the requirement of the officer so conducting trap to be empowered by the Anti-Corruption Commission. To empower an officer by the Commissioner in charge of investigation to lay trap and conduct the proceedings as required under rule 16 of the Anti- Corruption Commission Rules, 2007 is the mandatory requirement of law. In the absence of such empowerment or authorization the learned judges held the proceedings illegal and abuse of the process of the court and as such quashed the same. Rezaul Kabir (Md.) State and another 14 MLR (2009) (HC) 482.
Section 167-In order to convict the accused under section 167 of the Code, the prosecution must prove that the accused was entrusted with preparation of the document in question. The prosecution did not produce any document before the Court in order to support the charge. There is no incriminating evidence or circumstances to sustain the conviction under section 167 of the Code. Mostafa Kamal vs State, 66 DLR 534
Section 182, 195- An accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio Laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio. The prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above. The appeals succeed and are allowed. Impugned orders stand set aside......Saloni Arora =VS= State of NCT of Delhi, [3 LM (SC) 80]
Telephonic Call
Allegation of giving instruction over telephone cannot be the basis of a proceeding against the petitioner under section 186 of the Penal Code. Even if there is any statement of the Superintendent of Police to the effect that he received a telephonic call from the petitioner such evidence cannot be the basis of implicating the petitioner in the case because the identity of the caller cannot be proved and as such the proceeding cannot proceed against the petitioner. Continuation of the proceeding shall be abuse of the process of the Court. Major General (Rt.) Mahmudul Hasan Vs The State, 20BLD (HCD) 341
Written complaint
It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation of the order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code. Abdul Ahad @ Md Abdul Ahad Vs. The State, 20BLD(HCD)372
Section—188
It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code. Abdul Ahad @ Md Abdul Ahad Vs The State, 20 BLD (HCD) 372
Section 193— If a court finds that any witness committed an offence under section 193, the court is to proceed in accordance with the provisions of section 476 of the Code of Criminal Procedure because the offence under section 193 is included in section 195(l)(b) of the Code. Idris Miah (Md) vs State 50 DLR 629
Section 199 and 200
Declaring that the election of the
Jhalakathi Pourashava has been vitiated as a whole and consequently cancelling
the Gazette notification declaring the appellant as elected to the aforesaid
post.
Once the election process has been
start- ed, moreso, when in the instant case election result has been published
in the official gazette the High Cough Division has no jurisdiction under
Article 102 of the Constitution to enter- tain any matter relating to election
unless there is corum-non-judice or mal- ice in law as decided by the Court. It
has been settled long ago that disputed ques- tions of fact are outside the
jurisdiction of disposal of an application under Article 102 of the
Constitution. Abdul Halim Gazi vs. Afzal Hossain and others (Amirul Kabir
Chowdhury J) Civil) 4ADC 195
Section 199, 200
The claim of the respondent No. 1 that
the appellant is a bank loan defaulter has been persistently denied by the
appel- lant and the matter is pending before the superior Courts and thus we do
not find that there exits such a clear case capable to be decided at the
micro-level on the interpretation of the relevant law. Abdul Halim Gazi &
Bangladesh, Dhaka vs Afzal Hossain (Amirul Kabir Chowdhury J(Civil) 2ADC 533
![Penal Code, 1860 [ Sections 1-200] Case Reference](https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEij8NrntzwSovOuEi5Kh1MhKsjuPXVVzZjg0o9KSntl8WYtZqeafkfosn5XkUzSNpQlgpL2-zQeI5O42S6gD8U2CjDQrMnAtsB1NOedSv91yEKNB9QiVwRU4BPN3zA7DueHLWXjCidmXXG4jC9Ph3af6fjMP5eHYotol5Bdrs_yb_vpl9PdGQNLvYQuDBVx/w200-h200-p-k-no-nu/laptop-3214756_1920.png)