Nari-O-Shishu Nirjatan Daman Ain, 2000
S. (1ka)-On failure of the complainant to record an FIR at the Police Station, although urged,
he may file a complaint to the Tribunal, duly attended by an affidavit in support of his authority.
In such a case the Tribunal after examining the complainant, if satisfied, may send the complaint to
any allegation or any other person to enquire into the matter and to report within 7 working days.
On consideration of the enquiry report and the complaint if the Tribunal is satisfied about the
existence of prima facie case, he will take cognizance and proceed with the trial.
Babu Miah Vs. The State (Criminal), 2 ALR (2013)-HCD-338.
Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 2
The enquiry, report as mentioned in the judgment does not contain any proof that the complainant requested the police officer or the empowered person to receive the complaint and failed as such, it is clear that there is no proof in support of this part of the requirement of law and as such, the Tribunal ought to have dismissed the complaint, but it without doing so took cognizance on the plea that there were prima-facie materials in support of the allegation against the accused, but that was not sufficient. The tribunal has to be satisfied that proof of both the requirements were available in the report. Thus taking cognizance of the offence in the instant case was illegal. Umme Kulsum (Sweety) Vs. Md. Nazmul Islam and others, (Criminal), 5 LNJ(2016)(2)-AD-7.
Sections 2(Ka), 5, 7 and 30-No doubt that the act of the appellants attracts the definition of 'অপহরণ' defined in section 2(Kha) of the Ain, and therefore, they have committed an offence punishable under section 7 of the Ain. Besides, section 30 of the Ain relates to the abetment or instigate the offence punishable under the Ain. The conjunction 'or' has been used before the expression 'অপরাধটি সংঘটনেরর চেষ্টা করা'. This use of conjunction 'or' before the said expression 'অপরাধটি সংঘটনের চেষ্টা করা' makes it clear that the said expression is used in disjunctive. Therefore, the appellants Md Shahin and Ariful Islam Asha had abetted the offence of abduction. (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111
Sections 2(Ka) and 7-After school hours, Trisha was going home, but was prevented by the appellants from going there and she had to go to Khapara lane because of the chase led by the appellants and thus, she was compelled to go from one place to other within the meaning of section 2(Kha) of the Ain and chasing definitely involved the element of threat within the meaning of definition of "অপহরণ". The appellants committed the offence under section 7 of the Ain. High Court Division suffered from the intuition that "কোন স্থান হইতে কোন ব্যক্তিকে অন্যত্র যাইতে বাধ্য করা" must be a far place. High Court Division was obsessed with the definition of abduction as given in section 362 of the Penal Code in coming to the finding that there had been no abduction, but there was an attempt to abduct. (PER MD ABDUL WAHHAB MIAH J, MAJORITY). Mehedi Hasan @Modern (Md) vs State, 66 DLR (AD) 111
S.3,27(1Ka)(Kha)-Nari-O-Shishu Nirjatan Daman Ain,2000,being a special law, has
been enacted by the legislature with the intent and purpose to provide for stringent provisions for
preventions of offence of oppression to woman and children and to provide for adequate measures
for effective elimination of the offences related thereto. Section 3 provides that the provisions of
this Ain shall prevail notwithstanding anything contained in any other law for the time being in
force. On a careful reading of the Ain, we are of the view that the scheme of the legislation is
initially for the complainant to lodge a complaint with any police officer or authorized person and
if he fails after making request in getting the complaint accepted by such officer or authorized
person, he may file a complaint accompanied by an affidavit to that effect before the Tribunal,
whereupon the Tribunal, having been satisfied after examining the complainant may direct “any
Magistrate or any person” to enquire into the complaint and submit report within 7 working days.
Sirajul Islam Vs. State and another, 1 Counsel (2013)-HCD-46.
S.3-The Nari-O-Shishu Nirjatan Daman Ain, 2000, being a special law, has been enacted
by the legislature with the intent and purpose to provide for stringent provisions for prevention of
offences of oppression to women and children and to provide for adequate measures for effective
elimination of the offences related thereto.Section 3 provides that the provisions of this Ain shall
prevail notwithstanding anything contained in any other law for the time being in force.On a
careful reading of the Ain it appears that the scheme of the legislation is initially for the
complainant to lodge a complaint with any authorized police officer an authorized person and if
he fails after making request in getting the complaint accepted or authorized person, then he may
file a complaint accompanied by an affidavit before the tribunal whereupon the tribunal, having
been satisfied,after examining the complainant, may direct “any Magistrate or any person” to
enquire into the complaint and submit report within 7 working days.
Sirajul Islam Vs. The State and others, 1 ALR (2012)-HCD-162.
Nari-O-Shishu Nirjatan Daman Ain, 2000, under Section 4(1), 22
We have perused the dying declaration of the victim after the death of the victim the petitioner remained in abscondence till the date of the conviction. Taking into consideration these facts, it came to the conclusion that it was the petitioner who after killing his wife had absconded. (5)
Md. Sharifvs. The State (Surendra Kumar Sinha CJ) (Criminal) 12 ADC (2015)-Page 553
Ss.4(1) & 11(ka)-On analytical reading of the catena of decisions of our Apex Court it is found that it is the husband who will explain the plausible reason of cause of death of wife in his custody. But no such explanation has been given by the husband exculpating him in the offence of commission of murder rather has given confessional statement inculpating him, in the offence of murder.There is no doubt about the custodial death of the wife where husband is to be considered main perpetrator of the crime. Importing name of another person in the commission of the offence the condemned-prisoner has made the confessional statement which is of no use since no other evidence is available against other accused-person who has already been acquitted by the Court below and no appeal has also been preferred by the prosecution. So, the accused being husband is fully responsible for the cause of death of his wife and his offence is to be brought only within, the mischief of section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 since such offence has been committed when wife failed to fulfil the demand of dowry.
State Vs. Mirajul Sheikh, 15 BLC (2010)-HCD-306.
Section 4(2)(Ka)-The accused is to be treated as innocent until the prosecution proves
its case beyond any shadow of doubt. Every man is presumed to be innocent until he is proved
guilty. The defence is not required to prove anything and even if it does not challenge the
evidence of the prosecution, the Court can not convict the accused unless and until the evidence
adduced by the prosecution sufficiently prove the charge brought against the accused...(5)
A people who are revolted by an execution, but not shoked to an assassination require that the
public authorities should be armed with much sterner powers than elsewhere, since the first
indispensable requisites of civilized life have nothing else to rest on"(Representative
Government, 1861, Everyman's Library, p.179). The real aim of our criminal jurisprudence is to
achieve a balance between protection of the individual epitomised by Bentham...(6)
Sree Rabindra Nath Roy Vs. The State, 11 ADC (2014)-Page 164.
Section 5- Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain,1995. Section 8(1) - Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless. The Appellate Division observed that the High Court Division noticed that P.W.6 Abdul Baset is not the full brother of P.W.2, Nazma and that P.W.7, Asia Begum is not the mother of the victim; rather P.W.7 is the step mother of the victim. With reference to the affidavit filed by the petitioners, the High Court Division found that the petitioners tried to impress upon that the victim of her own volition went to the brothel but that the said affidavit was neither properly exhibited nor was it filed in the trial Court and that the victim denied making any affidavit. The High Court Division having considered the evidence of doctor, P.W.9 and the medical report, exhibit-1 found that the age of the victim was about 17 years on the date of her examination and that the victim in her evidence claimed that she was about 13 or 14 years old. The finding of the doctor as to age is belied by the fact that his report shows the taking place of menarche one year back. In context of development of girls in Bangladesh the age stated by the victim would be more commensurate with menarche having started one year previously. The accused-petitioners having no morality could dare to sell the victim-P.W.2, Nazma to a brothel. They were convicted under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain,1995 and sentenced them to suffer imprisonment for life. The order of conviction and sentence was rightly affirmed by the High Court Division. Accordingly, criminal petition for leave to appeal is dismissed.
Sukur Mahmood Vs. The State (Syed Mahmud Hossain J) 8 ALR 2016(2)-AD-141.
Ss. 5, 6, 21 and 30-The state shall take all precautionary measure to protect vulnerable women and children who become easy prey of the culprits sometime at the cost of their life.
Md. Mohor Ali and others Vs. The State. 32 BLD (2012)-HCD-370.
Ss. 5, 6 and 30-Penalty for trafficking women and children.
The High Court after considering the submissions made by the learned Advocates of both the parties and perusing the petition under section 561A of the Code of Criminal Procedure and petition of appeal and the Jail Appeal and also the judgment and order, it is clear that the prosecution adduced as many as 19 witnesses including the victims namely Most. Salma, Most. Jesmin, Most. Parveen, Most. Fatema, Most. Romesa Khatun, Most. Fatema and Most. Shefali Khatun who deposed in the Court as P.Ws. and disclosed their agony after recovery when they were kept firstly in the house of Ahmed Ali then in the house of Mohammad Ali and thereafter in the house of Mohor Ali, and lastly in the house of the convict-Nazrul which is situated within 1 and 1.5 kilometers from the border between India and Bangladesh. From the above circumstances there is no doubt that these women collected and gathered by inducing to provide with a goods jobs. The prosecution adduced sufficient evidence to show that they were kept near border in order to traffic them to India in return of huge amount of money. Fortunately, the local people could realize the incidence and recovered the victim women from the area along with 4 convicts but some of the convicts could escape therefrom. In this regard it is clear that the offences under section 5, 6 and section 30 of the Ain have been committed by the convicts.
Md. Mohor Ali Vs. The State, 3 ALR (2014)-HCD-347.
Ss. 5, 6 and 30-Penalty for trafficking women and children. The High Court after considering the submissions made by the learned Advocates of both the parties and perusing the petition under section 561A of the Code of Criminal Procedure and petition of appeal and the Jail Appeal and also the judgment and order, it is clear that the prosecution adduced as many as 19 witnesses including the victims namely Most. Salma, Most. Jesmin, Most, Parveen, Most. Fatema, Most. Romesa Khatun, Most. Fatema and Most. Shefali Khatun who deposed in the Court as P.Ws. and disclosed their agony after recovery when they were kept firstly in the house of Ahmed Ali then in the house of Mohammad Ali and thereafter in the house of Mohor Ali, and lastly in the house of the convict-Nazrul which is situated within 1 and 1.5 kilometers from the border between India and Bangladesh. From the above circumstances there is no doubt that these women collected and gathered by inducing to provide with a goods jobs. The prosecution adduced sufficient evidence to show that they were kept near border in order to traffic them to India in return of huge amount of money. Fortunately, the local people could realize the incidence and recovered the victim women from the area along with 4 convicts but some of the convicts could escape therefrom. In this regard it is clear that the offences under section 5, 6 and section 30 of the Ain have been committed by the convicts. Md. Mohor Ali Vs. The State, 3 ALR (2014)-HCD-347.
6(1)-Meaning of the word 'keep'-The word 'keep' is very significant here. Keep does not mean is going with but it means to stay in a particular condition or position. And stay means to continue to be a particular place for a period of time without moving away. To hold anyone as guilty of the offence under the Ain, for trafficking, the accused should be put on trial when the victim was found to be under the custody and control of the offender for some period of time.
State Vs. Anjali debi alias Monju Debi, 61 DLR 738.
Ss. 6,7-No direct positive evidence is available to show that accused exported so-called victim India or sold him for any lawful or immoral purpose.
Just because name of particular person is mentioned in FIR and or charge-sheet has been submitted against him is no sufficient to frame charge against him or to frame a charge mechanically.
Debobrota Baiddya @ Debu Vs. State, 26 BLD (2006)-HCD-15.
Ss. 6(1), 7 and 30-The allegation made in the First Information Report discloses that the petitioners are Advocates, all of them went their client Fatema Khairunnesa to the house of Jebonnesa (informants sister) at Commilla on 11-10-2001 alongwith police personnel in pursuance of search to recover the children of their client Fatema Khairunnesa, which does not constitute any criminal offence insofar as it relates to the petitioners. So, in the background of such facts of the case made here-in-above, the continuation of the impugned proceeding insofar as it relates to the petitioners amounts to an abuse of the process of the Court, which is liable to be quashed. There is no legal basis to justify the order of taking cognizance insofar as it relates to the accused petitioners under sections 6(1), 7 and 30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 ignoring the consecutive final reports under section 173 of the Code of Criminal Procedure. The proceeding insofar as it relates to the petitioners is quashed.
Kamruzzaman Babul (Md.) Vs. State and another, 12 BLC-HCD-295.
Section 6(1), 7 and 30 - Allegations made in the F.I.R not constituting offence and final report submitted by the I.0 –
Allegations in the F.I.R do not constitute any offence. The Investing Officer submitted final report twice recommending discharge of the accused. The tribunal judge took cognizance on a naraji petition which the learned judges of the High Court Division found to be abuse of the process of the court and quashed the proceedings. Kamruzzaman Babul and others Vs. The State and another 13 MLR (2008) (HC) 68.
Nari-0-Shishu Nirjatan Daman Ain, 2000
Sections 7 and 9 -Charge has to be proved by consistent evidence-Delay in lodging FIR when not satisfactorily explained renders prosecution case doubtful.
In the instant case no witness is examined by the prosecution regarding kidnapping and recovery of the victim girl. The Medical officer found no evidence of rape on the victim. The learned judges held the conviction and sentence based on mere surmise and conjecture and as such acquitted the convict-appellants. Kazi Nurunnabi Parag and others Vs. The State 15 MLR (.2010) (HC) 84.
Section 7-There is no doubt that the accused have committed a heinous offence. However, where any special law gives specific benefit to an accused, then he deserves to be treated in accordance with such beneficial provisions. Under the second proviso to section 51, an accused found guilty of any offence, even one carrying the sentence of death or life imprisonment, may be sentenced in exceptional circumstances to imprisonment for a maximum period of ten years. Even upon conviction under section 7 of the Ain, accused Asha may not be sentenced to 14 years in prison. The sentence that may be lawfully imposed is a maximum of ten years' imprisonment. (PER MUHAMMAD IMMAN ALI J, MINORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111
Section 7-In order to do complete justice, we invoke our power under article 104 of the Constitution and dispose of the appeal finally without sending the case back on remand for trial afresh by the concerned Tribunal, under the Ain, 2000. (PER MD ABDUL WAHHAB MIAH J, MAJORITY) Mehedi Hasan @Modern (Md) vs State, 66 DLR (AD) 111
Section 7-Crime against humanity- There is no doubt that the trial is without jurisdiction but, by the same time, it cannot be ignored that the act committed by the appellants is barbarous one. Their act shakes the conscience of the people at large. The act of the accused is not only a crime against humanity but also barbaric. (PER SK SINHA J, AGREEING WITH MD ABDUL WAHHAB MIAH J MAJORITY) Mehedi Hasan @ Modern (Md) vs State, 66 DLR (AD) 111
Nari-0-Shishu Nirjatan Daman Ain, 2000
Section 7 and 9(1) - Offence of abduction and rape
Code of Criminal Procedure, 1898
Section 561A - Quashment of conviction and sentence - Inordinate delay in lodging the complaint without satisfactory explanation renders the prosecution case doubtful.
In her statement recorded under section 164 of Cr.P.C. the victim woman is 16/17 years of age stated that her marriage with the convict petitioner was solemnized in the office of the Nikah Registrar and they sown in an affidavit to that effect before the Notary Public. Moreover there was inordinate delay of 2½ months in lodging the complaint after the occurrence without satisfactory explanation which rendered the prosecution case doubtful. Medical report shows that the victim was habituated to sexual intercourse. The trial was held in the absence of the accused after the publication of proclamation in the local news paper and as such he was not aware of the trial and could not prefer appeal within the specified time. The learned judges of the High Court Division having found the conviction and sentence not based on legal evidence quashed the same. Firoz Chokder Vs. The State 11 MLR (2006) (HC) 115.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 7/30 - Custody of the victim girl when she is above 18 years - S.S.C certificate is held to be a valid document as to determination of age of the victim.
As per the S.S.C certificate the victim is above 18 years and is a major. She is not willing to go to the custody of her parents. She voluntarily married the accused and embraced Islam. When she expressed to be released on her own bond, the learned judge of the Nari-O Shishu Nirjatan Daman Tribunal, allowed her to be released from judicial custody on her own bond. The learned judges of the High Court Division found the impugned order perfectly justified. Nirmal Das Vs. State and another 13 MLR (2008) (HC) 386.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Sections 7 and 3D - Abduction of a minor girl for the purpose of marrying
The learned judges of the High Court Division found from the S.S.C registration card and testimonial issued by the school authority, the victim girl minor and further held her consent to the alleged marriage of no value in the eye of law. They further held that the accused respondents abetted the offence by keeping the victim in illegal confinement and as such set aside the impugned order of discharge. Delwar Hossain vs. The Stall and others 13 MLR (2008) (HC) 258.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 7 and 30 - Allegation made in the F.I.R and Naraji petition when does not disclose any offence the proceedings started thereon are liable to be quashed.
The victim made statement under section 22 of the act wherein she stated that she is major and she married the accused voluntarily and they are living together as husband and wife. The police submitted final report. The proceedings are drawn on the allegation of Naraji Petition which does not constitute any offence punishable under the act. Therefore the learned judges of the High Court Division held the proceedings abuse of the process of the court and as such quashed the same. Afshar Ali Vs. The State and another 14 MLR (2009) (HC) 369.
ধারা ৭ এর ৯
হাইকোর্ট বিভাগের অভিমত এই যে, ডাক্তারী পরীক্ষা ও রাসায়নিক পরীক্ষা হইতে দেখা যাইতেছে যে, যদিও পরীক্ষাকারী ডাক্তার প্রফেসর মােঃ আশ্রাফুল আলম ভিকটিমকে যথাযথভাবে পরীক্ষা করিয়াছেন, কিন্তু প্যাথলজিক্যাল রিপাের্টে ভিকটিমের শধীরে কোন ধর্ষণ ও মার্ক অৰ ভায়ােলেন্সের চিহ্ন পাওয়া যায় নাই। ইহাতে প্রতীয়মান হইতেছে যে, ভিকটিম ধর্ষণের শিকার হইয়াজিলে নাকি ধর্ষণের প্রচেষ্টার শিকার হইয়াছিলাে তাহা যথাযথভাবে প্রমাণ হয় নাই । ইহা সত্ত্বেও বিজ্ঞ বিচারক ভিকটিমের বিরুদ্ধে আনীত নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৭/৯(১) ধারার বিধানে অভিযুক্ত করিয়াছেন । উক্ত আইন অনুযায়ী ধর্ষণ প্রচেষ্টার অপরাধের জন্য নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ১৯ (৪) ধারার বিধান রহিয়াছে। প্রসিকিউশন পক্ষের সকল সাক্ষ্যের সাক্ষ্য পর্যালােচনা করিয়া দেখা যাইতেছে যে, ভিকটিম মুন্নি বেগম কে আসামী শ্রী বিরাম চন্দ্র দাস ধর্ষণ করিয়াছিলাে নাকি ধর্ষণের প্রচেষ্টা করিয়াছিলাে তাহা প্রকৃত পক্ষে প্রমানীত হয় নাই। এইরূপ সন্দেহ থাকার কারণে আসামী শ্রী বিরাম চন্দ্র দাস এর বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(১) ধারার বিধানে অভিযোগ গঠন করার কোন অবকাশ ছিলাে না বরং তাহার বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ১৯(৪) ধারার বিধানে অভিযােগ গঠন করা যুক্তিযুক্ত ছিলাে। শ্রী বিরাম চন্দ্র দাস বনাম রাষ্ট্র: (Criminal) 9 ALR (2017)(I)-HCD-I0.
Nari-O-Shishu S. 7. Penal Code S. 363-Kidnapping-Testimony of witness-Credibility- Minor discrepancies on trivial matters not touching core of case-Evidence of witness cannot be rejected as a whole. AIR (2015)-SC-I032 (8)
Nari-O-Shishu S. 7. Penal Code S. 363 -Kidnapping-Examination of accused - Letters regarding kidnapping of child and demand of ransom by accused found by mother of child - In absence of cross-examination of any of witnesses that letters were written under pressure of police-Plea of accused in his statement u/S. 313 Cri. P. C. that letters were written under pressure of police-Cannot be accepted particularly when accused produced before Magistrate had admitted correctness of said letters. AIR (2015)-SC-1032 (C)
Nari-O-Shishu S. 7. Penal Code S. 364A -Kidnapping for ransom-Acquittal of co-accused-No evidence to show that co-accused had instigated accused to kidnap child - Acquittal of co-accused would not affect case of accused. AIR (2015)-SC-1032 (A)
Nari-O-Shishu S. 7. Penal Code S. 364-A-Kidnapping for ransom-Proof-Allegations
that deceased and his son were kidnapped for ransom and killed by appellants-Dead bodies and
personal belongings of deceased recovered from covered gutters at instance of accused-Failure of
accused to give explanation or false explanation regarding information to recoveries admissible
u/S. 27 of Evidence Act-Conviction of appellants, proper.
AIR (2015)-SC-518(A).
Nari-O-Shishu S. 7. Penal Code S.364-A-Kidnapping for ransom -Proof - Accused
working as domestic servant alleged to have kidnapped child aged 3.50 years - FIR lodged on
basis of letters written to parents regarding kidnapping and demand of ransom by accused - Plea
that letters written under police pressure cannot be accepted as accused admitted its correctness
before Magistrate - Discrepancies in evidence of witnesses are minor in nature - Child recovered
from custody of accused at railway station - No explanation by accused as to how child could be
brought to such place -Order convicting accused, proper.
AIR (2015)-SC-1032 (D)
Nari-O-Shishu S. 7. Penal Code S. 376-Rape-Circumstantial evidence-Complainant
organized 'Jaagran' on offside of village and his seven years old daughter found missing - Her
dead body found in neighbouring village in naked condition with injuries on her private parts and
her head smashed with stone lying nearby - Medical evidence showing that she died homicidal
death - Evidence of witnesses that accused also participated in 'Jaagran' along with other villagers
- Blood-stained clothes of blood group of deceased recovered at instance of accused - No
explanation offered by accused for injuries sustained by him - Accused guilty of offence.
AIR (2015)-SC-1016 (A)
Section 7/30 - This appeal by leave is directed from a judgment of the High Court
Division maintaining the conviction and sentence of the appellants passed by the Nari-O-Shishu
Nirjaton Daman Tribunal, Netrokona under section 7/30 of the Nari-O-Shishu Nirjaton Daman
Ain, 2000
Hannan and others vs. The State (Surendra Kumar Sinha CJ) (Criminal)
13 ADC (2016) Page-88
Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000] Sections 7, 8, 9(2) and 30—Law is
now well settled that on the basis of defence plea or materials the criminal proceedings should not
be stifled before trial; when there is a prima-facie case for going for trial—The High Court
Division helds that law is now well settled that on the basis of defence plea or materials the
criminal proceedings should not be stifled before trial; when there is a prima facie case for going
for trial. In view of such facts the grounds taken by the accused-respondents are not the correct
exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by
which the course of justice instead of being advanced readily been stifled inasmuch as the grounds
advanced before High Court Division are not correct or legal exposition of law. Therefore High
Court Division hold that there are sufficient grounds for proceeding against the accused-
respondents for going for trial under sections 7,8,9(2), 30 of the Ain, 2000. Md. Nurul Amin Vs. The State (Criminal) 7 ALR (2016) (1)-HCD-268
Section 8 read with Penal Code(XLV of 1860)
Sections 300 and 302
The High Court Division observed that murder took place on the date, time and in the manner stated by P.Ws and convict Khaled had murdered the minor innocent boy by stabbing him with a knife.The inculpatory confessional statement of the convict is Found true and voluntary.The chain of evidence against convict complete and specific, the charge has been proved against the Convict. The State. Vs Khaled Hasan (Criminal) 7 ALR (2016)(1)-HCD-99.
Sections 7/2000 and Nari-O-Shishu Nirjatan(Bishes Bidhan) Ain/1995 Section 10(1)-Husband is to explain when the wife was in his custody and met with her dead. When the wife met with her death while she was in the custody of her husband it is he who is to explain how she met with her death. It rather appears from the evidence that he allowed his wife to die and even after her death he did not inform any of the co-villagers or reported the matter to the police. None of the inmates of the house belonging to the convict also informed the police nor took any proper medical help for saving the life of the victim. The murder having taken place while the condemned convict was living with his w in the same house he was under an obligation to explain how his wjfe had met with her death. In the absence of any explanation coming from his side it seems none other than the husband who was responsible for causing the death in question. The State Vs. Asab Uddin, 5 ALR (2015)-HCD-35.
Sections 7, 9(1) and 30-To ascertain the age of any person teeth is an important factor, the opinion of the doctor as to the age of the victim is not authanticated one. We should bear in mind that age is always depend upon the growth of the person who has been examined, a male or female of 18 years can be found as 15 or 16 years due to lack of his or her development of the body and again a male or female of 18 years can be found as 19 or 20 years and the reason is that his or her development and proberty was earlier. So,the opinion of the doctor as to the age of the victim is not in our view because the way the victim should be examined has not been done. There is no opinion as to the teeth, because as per Modi's Medical Jurisprudence to ascertain the age of any person teeth is an important factor. 'Modi' has also observed 'the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depend upon in estimating age in medico legal cases.The impugned judgment and order of conviction and sentence under section 7 of the Nari-O-Shishu Nirjatan Daman Ain 2000 is here by set aside. The convict appellant is acquitted from the charge leveled against him. Mehedi Hasan alias Rasel Vs. The State (Criminal), 5 ALR (2015)-HCD-.
Section-7/9(3)
Code of Criminal Procedure, 1898
Section-87,88-Since the accused did not appear in the trial Court and could not cross examine the prosecution witnesses, therefore, it is expedient for ends of justice to send back the case to the trial Court for giving the accused an opportunity to examine the prosecution witnesses if he so desires and also in order that the Court may examine the accused under section 342 of the Code of
Criminal Procedure
The State v. Robin, 35 BLD (2015)-AD-18
S. 7-It is urged on behalf of the petitioner that there was substantial defect in appraisal of
the evidence by the Tribunal and thereby the High Court Division committed fundamental error in
affirming the conviction and sentence which error has reflected in the judgment of this Division
as well.
Mohd. Tosibul Islam alias Sentu Vs. The State, 9 ADC (2012)-809.
Sec. 7, 9(1), 30-In ascertaining the age of young persons, radiograms of several main
joints of the upper or the lower extremely of one or both sides of the body should be taken.
Mehedi Hasan @ Rasel Vs. The State, 32 BLD (2012)-HCD-578.
S. 7-Opinion of doctor-Opinion of the doctor as to the age of the victim is not
authenticated one because the way the victim should be examined has not been done. There is no
opinion as to the teeth, because as per Modi's medical Jurisprudence to ascertain the age of any
person teeth is an important factor 'Modi' has also observed the progressive increase in height
and weight according to age varies so greatly in individuals that it cannot be depend upon in
estimating age in medico legal case.
Mehidi Hasan alias Rasel Vs. Stare, 17 BLC (2012)-HCD-436.
S. 7 and 9(1) Offence of abduction and rape-Cr.PC. Section 561 A-Quashment of
conviction and sentence-inordinate delay in lodging the complaint without satisfactory
explanation renders the prosecution case doubtful.
In her statement recorded under section 164 Cr.PC the victim woman of 16/17 years of age
stated that her marriage with the convict petitioner was solemnized in the office of the Nikah
Registrar and they sown in an affidavit to that effect before the Notary Public. Moreover there
was inordinate delay of 2.50 months in lodging the complaint after the doubtful. Medical report
shows that the victim was habituated to sexual intercourse. The trial was held in the absence of
the accused after the publication of proclamation in the local news paper and as such he was not
aware of the trial and could not prefer appeal within the specified time. The learned Judges of the
High Court Division having found the conviction and sentence not based on legal evidence
quashed the same.
Firoz Chokder Vs. The State, 11 MLR (2006)-115.
Whether the victim girl is a minor or not Radiologist certifying that the age of the
victim girl to be 17.50 to 18.50 years.
Held: We have considered the provisions of law and the facts of the case and on giving our
anxious thought to the prevailing circumstances of our society, we have seen the victim girl in
open Court and also in the official Chamber of the presiding Judge and we cannot but hold that
she is not more than 16 years of age. Our opinion has been corroborated by the registration card
and birth certificate. It is well settled principle of law that this birth certificate and school
certificate will prevail over the medical certificate.
Sarder Lufur Rahman Vs. The State, 19 BLT (2011)-HCD-280.
S. 7 and 9(1)-Benefit of Doubt
No FIR named eye witness were brought before the Court to prove the allegation of kidnapping and no police personnel who recovered the victim were placed before the Court to prove the said recovery and there is no evidence about the commission of rape upon the victim, we are constrained to hold the view that the prosecution has miserably failed to prove the charge leveled against the appellants in any way and the trial Court convicted the appellants on mere surmises and conjectures and thus the impugned judgment and order is liable to be set aside. Kazi Nurun Nabi Parag & Ors Vs. The State, 19 BLT (2011)-HCD-205.
See 15 BLC (2010)-HCD-518.
See 15 MLR (2010)-HCD-84.
Ss. 7/36–Custody of the victim girl when she is above 18 years-S.S.C certificate is held to be a valid document as to determination of age of the victim- As per the S.S.C certificate the victim is above 18 years and is a major. She is not willing to go to the custody of her parents. She voluntarily married the accused and embraced Islam. When she expressed to be released on her own bond, the learned Judge of the Nari-O-Shishu Nirjatan Duran Tribunal, allowed her to be released from judicial custody on her own bond. The learned Judges of the High Court Division found the impugned order perfectly justified.
Nirmal Das Vs. State and another, 13 MLR (2008)-HCD-386.
S. 7 and 30-Abduction of a minor girl for the purpose of marrying her- The learned Judges of the High Court Division found from the S.S.C Registration Card and testimonial issued by the school authority, the victim girl minor and further held her consent to the alleged marriage of no value in the eye of law. They further held that the accused respondents abetted the offence by keeping the victim in illegal confinement and as such set aside the impugned order of discharge. Delwar Hossain Vs. The State and others, 13 MLR (2008)-HCD-258.
Ss. 7 & 9-When no evidence has been adduced in Court about kidnapping of the victim or her recovery from the possession of the accused appellant Kazi Nurun Nabi alias Parag vis-à-vis when there is no evidence about the commission of rape upon the victim, we are constrainedto hold the view that the prosecution has miserably failed to prove the charge leveled against the appellants in any way and the trial Court convicted the appellants on mere surmises and conjectures and thus the impugned judgment and order is liable to be set aside we find merit in this appeals. Kazi Nurun Nabi Parag Vs. State, IS BLC (2010)-HCD-578.
See 15 MLR (2010)-HCD-84.
See 19 BLT (2011)-HCD-205.
S. 7-There is no earthly reason to disbelieve the statements of the victim which she also
gave under section 164 of the Code. It is also not acceptable to us why a minor girl would give
her deposition and statement narrating the involvement of the appellant in such a manner as she
has given, if there would have been no forceful abduction by the appellant and that if she went
with him on her own.
Monir Hossain Vs. State, 59 DLR-416
Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995
S.9 (kha) and 6(1)-Offence of abduction of minor girl for the purpose of marrying her. In the instant case the victim girl is found to be a minor of about 13 years at the time of
occurrence. She was abducted by the accused appellant and subsequently married. It is contended
that the victim consented to the marriage. The consent of the minor is immaterial as by reason of
minority her consent is no consent in the eye of law. The learned judges of the High Court Division in that view confirmed the order of conviction and sentence with certain modification
Abdul Mannan (Md.) alias Khalil Vs. State and another 13 MLR (2008)-HCD-291.
Nari-O-Shishu Nirjatan Daman Ain, 2000-
S. 7 and 30-Allegation made in the FIR and Naraji petition when does not disclose any
offence the proceedings started thereon are liable to be quashed-
The victim made statement under section 22 of the Ain, 2000 wherein she stated that she is
minor and she married the accused voluntarily and they are living together as husband and wife
The police submitted final report. The proceedings are drawn on the allegation of Naraji Petition
which does not constitute any offence punishable under the Ain. Therefore the learned judges of
the High Court Division held the proceedings abuse of the process of the court and as such
quashed the same.
Afsar Ali Vs. The State and another 14 MLR (2009)-HCD-369.
S.363 PC-Offence of kidnapping. (Age below 18 years-consent immaterial)
When a victim girl who is below 18 years of age is kidnapped by enticement from the lawful
custody of her guardian, the offence when proved by cogent and consistent evidence is punishable
under section-363 of Penal Code. The consent of the minor is immaterial and of no legal
consequence.
Abdul Karim V's. The State; 7 MLR (2002)-HCD-341
Same - 22 BLD (2002)-HCD-523.
S. 370 -Child trafficking - Children in large number brought to State of Kerala from 3-4
other States-Children intercepted at railway station-Cases of child trafficking already registered
by Railway Police-Crime Branch also carried on investigation and large number of persons
involved, were arrested-Orphanages receiving children from agents, showing their co-operation in
matter - Investigation entrusted to CBI-Child Welfare Committee directed to take appropriate
measures in accordance with law.
AIR (2016)-(NOC) 182 (Ker) (F)
Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000)
Sections 8, 7, 9(2) and 30-Law is now well settled that on the basis of defence plea or
materials the criminal proceedings should not be stifled before trial; when there is a prima facie
case for going for trial - The High Court Division helds that law is now well settled that on the
basis of defence plea or materials the criminal proceedings should not be stifled before trial, when
there is a prima facie case for going for trial. In view of such facts the grounds taken by the
accused-respondents are not the correct exposition of law. Moreso interruption of the course of
Justice will set up a wrong precedent by which the course of justice instead of being advanced
readily been stifled inasmuch as the grounds advanced before High Court Division are not correct
or legal exposition of law. Therefore High Court Division hold that there are sufficient grounds
for proceeding against the accused-respondents for going for trial under sections 7,8,9(2), 30 of
the Ain, 2000
Md. Nurul Amir Vs. The State (Criminal)
7 ALR (2016) (1)-HCD-268
Section 8 read with
Penal Code (XLV of 1860)
Sections 300 and 302
The High Court Division observed that murder took place on the date, time and in the manner
stated by P. Ws and convict Khaled had murdered the minor innocent boy by stabbing him with a
knife. The inculpatory confessional statement of the convict is found true and voluntary. The
chain of evidence against convict complete and specific, the charge has been proved against the
Convict. The State. Vs Khaled Hasan (Criminal) 7 ALR (2016) (1)-HCD-99.
Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
Ss. 13 and 14-Offence of kidnaping for ransom-Evidence Act, 1872-
S.118-Child witness is competent when found capable of proper understanding-
Telephonic conversation recorded leading to the arrest of the accused and recovery of the
victim supported by ocular evidence can well form the basis of conviction. The conviction and
sentence based on consistent and reliable evidence on record to the exclusion of any reasonable
doubt affirmed by the High Court Division are held by the apex court perfectly justified.
Jasimuddin and another Vs. The State
11 MLR (2006)-AD-162.
ধারা ৯ এবং ৭
হাইকোর্ট বিভাগের অভিমত এই যে, ডাক্তারী পরীক্ষা ও রাসায়নিক পরীক্ষা হইতে দেখা যাইতেছে যে, যদিও পরীক্ষাকারী ডাক্তার প্রফেসর মােঃ আশ্রাফুল আলম ভিকটিমকে যথাযথভাবে পরীক্ষা করিয়াছেন, কিন্তু প্যাথলজিক্যাল রিপাের্টে ভিকটিমের শরীরে কোন ধর্ষণ ও মার্ক অব ভায়ােলেন্সের চিহ্ন পাওয়া যায় নাই। ইহাতে প্রতীয়মান হইতেছে যে, ভিকটিম ধর্ষণের শিকার হইয়াছিলাে নাকি ধর্ষণের প্রচেষ্টার শিকার হইয়াছিলাে তাহা যথাযথভাবে প্রমাণ হয় নাই। ইহা সত্ত্বেও বিজ্ঞ বিচারক ভিকটিমের বিরুদ্ধে আনীত নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৭/৯(১) ধারার বিধানে অভিযুক্ত করিয়াছেন। উক্ত আইন অনুযায়ী ধর্ষণ প্রচেষ্টার অপরাধের জন্য নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(৪) ধারার বিধান রহিয়াছে। প্রসিকিউশন পক্ষের সকল সাক্ষ্যের সাক্ষ্য পর্যালােচনা করিয়া দেখা যাইতেছে যে, ভিকটিম মুন্নি বেগম কে আসামী শ্রী বিরাম চন্দ্র দাস ধর্ষণ করিয়াছিলাে নাকি ধর্ষণের প্রচেষ্টা করিয়াছিলাে তাহা প্রকৃত পক্ষে প্রমানীত হয় নাই। এইরূপ সন্দেহ থাকার কারণে আসামী শ্রী বিরাম চন্দ্র দাস এর বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(১) ধারার বিধানে অভিযােগ গঠন করার কোন অবকাশ ছিলাে না বরং তাহার বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(৪) ধারার বিধানে অভিযােগ গঠন করা যুক্তিযুক্ত ছিলাে। শ্রী বিরাম চন্দ্র দাস বনাম রাষ্ট্র: (Criminal) 9 ALR (2017)(1)-HCD-10.
ধারা-৯(১) এবং ৯(৪) (খ)-ধর্ষণ ও ধর্ষণের চেষ্টা।
অনেক সময় দেখা যায় এজাহারে এবং অভিযােগপত্রে একাধিক অপরাধের ধারা উল্লেখ থাকে। তবে চার্জ গঠনের সময় সকল ধারায় অভিযােগ গঠন করা হয় নাই কিন্তু সাক্ষ্য প্রমাণের ভিত্তিতে বিচারক যদি দেখতে পান চার্জের বাহিরে সংশ্লিষ্ট অন্যকোন অপরাধ প্রমাণিত হয়েছে, সেক্ষেত্রে বিচারক আদালত চার্জে উল্লেখিত নয় এমন অপরাধের ধারাতেও সাক্ষী প্রমাণের ভিত্তিতে আসামীকে দণ্ড প্রদান করতে পারেন। এই মামলায় ধর্ষণের অভিযােগ প্রমাণিত না হলেও ধর্ষণের প্রচেষ্টা সুপ্রমাণিত, মাননীয় বিচারক সঠিকভাবেই নারী ও শিশু নির্যাতন আইনের ৯(৪) (খ) ধারা অনুযায়ী আসামীকে ধর্ষণের প্রচেষ্টার জন্য দণ্ড প্রদান করেছেন। মােঃ লুৎফর রহমান ওরফে মােঃ লুৎফর বনাম -রাষ্ট্র ৩ এ এল, আর (২০১৪)এইচসিডি-৩৬৮.
The High Court Division on
consideration of evidence of PWs rightly found that accused-petitioner Bazlu
raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim
girl Mahinur Begum and as such the finding of conviction and sentence of the
High Court Division are based on proper appreciation of evidence on record.
BazluTalukder Vs The State, 20BLD (AD)227
Section 9(1)-When allegation of rape is not sustainable.
The High Court Division observed that the complainant in her complaint categorically stated that continuously she had sexual intercourse with the accused Shahidul Islam who made promise to marry her. From close analysis of the allegations made by the complainant High Court Division finds that she had consent for such intercourse. In the medical report it was opined that complainant has a sign of old sexual intercourse. Significantly the complainant aged about 40 years and she was a politician by profession and accused aged about 30 years. In such situation High Court Division feels that without her consent continuous cohabitation is absolutely improbable. The High Court Division has meticulously examined the allegations made in complaint, Charge Sheet, medical report, statements of the witnesses and other materials on record and the High Court Division is of the view that the petition of complaint do not disclose the offence prescribed under section (1) of the Ain 2000. Parul Akter Vs. Md. Shohidul Islam (Syed Md. Ziaul Karim J) 8 ALR 2016(2) HCD-109.
Section 9(1)-Only one party of the two contributing to the amicable act can not be stamped to have committed an offence of rape. The act of the male partner does not attract the mischief of section 9(1) of the Ain. Najim Uddin (Md) vs State, 69 DLR 235
Sections 9(1)-Manner of occurrence as alleged in the FIR is preposterous and suffers from infirmity and improbability. It is admitted that they lived together as husband and wife for six years. The consent of the victim was not obtained practicing fraud. Sexual intercourse was not an act of one day, but for six years. Such act do not constitute an offence of rape punishable under section 9(1) of the Ain. Golam Ahmed vs State, 64 DLR 93
Section 9(1)-There was no charge of abduction. The prosecutrix reached the bedroom of the Romeo, on her own accord and stayed there for quite few days. Meanwhile they two came out and once again went back to the refuge of the appellant. Amidst such free mixing, it is presumed that these two adults, man and woman, amicably indulged in sexual intercourses. But, as has been illustrated, the evidence meaning use of force or obtaining consent by deceitful means remained absolutely missing. Hence the charge of rape appears misconceived. Sanjay Kumar Biswas vs State, 68 DLR 185
Section 9(2)-Charge framing date is the relevant date for considering the age of the accused under the Children Act, 1974.
The Appellate Division has given our anxious thought to the age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. The Appellate Division is inclined to commute the sentence of death to one of imprisonment of life. Accordingly, the criminal appeal is dismissed and the sentence of death is modified to one of imprisonment for life. Manik Vs. The State (Criminal) 8 ALR (2016) (2)-AD-59
Section 9-Code of Criminal Procedure: Section 561: In a 561A application no scope to examine evidence:
The HCD held that in an application under Section 561A of the CrPC there is little scope to scan the evidence, of witnesses and that since it is not a case of no evidence it is difficult to interfere with the judgment and order passed by the Tribunal (Para 8). Sharif @ Shaira V. State 4 CLR (2016)-AD-8.
Nari-O-Shishu Nirjatan Daman Ain, 2000: Section 9(1): Acid Aparadh Daman Ain, 2002: Sections 4 and 5: Code of Criminal Procedure, 1898: Section 173: Naraji Petition and Duties of a Judge or Magistrate:
A three-Judge Bench of the Supreme Court of India in Bhagwant Singh Vs. Commissioner of Police (1985)2 SCC 537: AIR 1985 SC 1285 opined that while dealing with a final report submitted by the Police stating that no offence appears to have been committed, the Magistrate can adopt one of the three courses, i.e. (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and taking the view that there is sufficient ground for proceedings further, take cognizance of the offence and issue Process; or (3) he may direct for further investigation to be made by the Police under sub-section 3 of
Section 156 of the Code of Criminal Procedure (briefly as Code). While adopting the first course
(accepting the final report and dropping the proceedings), the informant must be given an
opportunity of being heard so that he can make his submissions to persuade the Magistrate to take
cognizance of the offence and issue process. In its subsequent decision in Union Public Service
Commission Vs. Papaiah (1997) Cr.LJ.4636 (SC), the Court, as per the law laid down in
Bhagwant Singh's case observed that the issuance of a notice by the Magistrate to the informant
at the time of consideration of the final report is "must" (Para-17). Shahidul Biswas Vs. State 4 CLR (2016)-HCD-37.
Section 9(3)-Since offence of murder punishable under section 302 of the Code was carried to the door of convict- appellants they can be very much convicted for offence of section 302 of the Code and, as such, we convert the offence of section 9(3) of the Ain to offence of section 302 of Code. State vs Bidhan Chandra Roy, 66 DLR 500
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9Ka- The imperative ingredients of 9Ka of the Ain are that there must be an act of abetment of committing suicide of a female (নারীর আত্মহত্যা করিতে প্ররোচিত করিবার....") that there must be a wilful act of the accused "[ব্যক্তির ইচ্ছাকৃত (wilful) কোন কার্য]"; that the said wilful act is done without the consent of the victim or against her will [...নারীর সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে] that the said wilful act violates her modesty [... কার্য দ্বারা সম্ভ্রমহানী] and that violation of her modesty is the direct cause of her to instigate suicide by his aforesaid act" সম্ভ্রমহানী হইবার প্রত্যক্ষ কারণে কোন নারী আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিতে প্ররোচিত করিবার। APM Sohrab-uz-zaman Dr -VS-State, [1 LM (AD) 466]
Section 9(Ka)- Quashment-
Abetment of suicide Considering the facts and circumstances as revealed from the prosecution papers our considered view is that there was no direct incitement or mensrea on the part of the appellant which comes within the definition of abetment of suicide. In this case, the materials on record, prima-facie, do not disclose an offence under section 9Ka of the Ain and therefore the accused appellant ought not to be tried upon the charge. The judgment and order of the High Court Division is set aside and the proceeding is quashed.......Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466]
Section 9Ka-Section 9Ka provides that, "নারীর সম্মতিছাড়া বা ইচ্ছার বিরুদ্ধে "সম্ভ্রমহানী" anticipated a non-consensual act of such a nature where there has been violation of modesty. The word modesty is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account for her sex. The word modesty has not been defined in the Ain or in the Penal Code. Dr APM Sohrab-uz- zaman vs State, 68 DLR (AD) 331
Section 9Ka-Neither the telephone conversation nor the alleged conduct of the appellant as revealed from the FIR and charge-sheet could have been the direct cause (প্রত্যক্ষ কারণে) of the commission of suicide as required under section 9ka of the Ain. It can be said that the act which, as claimed by the respondent, instigated suicide and caused her death, cannot be accepted for the causal link of the sad demise of the deceased with the act as described in the charge-sheet against the appellant, is not present to form the offence which can fit to call within the ambit of section 9Ka of the Ain. Dr APM Sohrabuzzaman vs State, 68 DLR (AD) 331
Section 9(Ka) Suicide and abetment -Uttering of abusive language will not amount to provocation to commit suicide and does not constitute abetment unless something more is done in pursuance of the said utterance of abuses. Dr APM Sohrab- uz-zaman vs State represented by the Deputy Commissioner, Dhaka, 68 DLR (AD) 331
Section 9Ka-The wilful act was done without the consent of the victim or against her will is totally irrelevant here since they are husband and wife. The phone call was between two consensual adults, i.e. married couple. Dr APM Sohrabuzzaman vs State, 68 DLR (AD) 331
Section 9Ka-There must be an act of abetment of committing suicide of a female (নারীর আত্মহত্যা করিতে প্ররোচিত করিবার......"; that there must be a wilful act of the accused "[ব্যক্তির ইচ্ছাকৃত (wilful) কোন কার্য]"; that the wilful act is done without the consent of the victim or against her will [...... নারীর সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে] that the wilful act violates her modesty [...... কার্য দ্বারা সম্ভ্রমহানী] and that violation of her modesty is the direct cause of her to instigate suicide by his act [সম্ভ্রমহানী হইবার প্রত্যক্ষ কারণে কোন নারী আত্মহত্যা করিলে উক্ত ব্যক্তি নারীকে অনুরূপ কার্য দ্বারা আত্মহত্যা করিতে প্ররোচিত করিবার] Dr APM Sohrabuzzaman vs State, 68 DLR (AD) 331
Section 9(1)/30- Granting bail to the accused-respondent for a period of 6(six) months. The accused-respondent was convicted under section 9(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced to suffer imprisonment for life and to pay a fine of Tk. 5,000/-, in default, to suffer rigorous imprisonment for 4(four) months more.
We find that the High Court Division was not justified at all to grant this accused- respondent bail during pendency of the appeal. In the circumstances we set aside the impugned order of the High Court Division granting bail to the accused-respondent. ent. The State -VS- Hafej Bakaul. (1 LM (AD) 594]
Section 9(2) Charge framing date is the relevant date for considering the age of the accused under the Children Act, 1974- The Appellate Division has given our anxious thought to the age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. The Appellate Division is inclined to commute the sentence of death to one of imprisonment of life. Accordingly, the criminal appeal is dismissed and the sentence of death is modified to one of imprisonment for life...... Manik =VS= The State, [1 LM (AD) 520]
Sections 9(3)/30- Instant offence had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. The Court will be failing in its duty if appropriate punishment is not awarded for an offence which had been committed not only against the unfortunate victims but also against the society to which the criminals and victims belong. It is the duty of the Court to respond to the cry of the society and to settle what would be a deterrent punishment for an abominable punishment. Two widows, having had no male member of their families and had been maintaining their livelihood by selling sarees in different villages, were somehow brought in a field in the late night and the convicts not only raped them but also killed them mercilessly. Both the victims died with a painful death. Considering the nature of crimes, we do not find any mitigating circumstances to commute the sentence. Aziz @ Azizul @ Azid -VS- The State, [10 LM (AD) 6971
Section 9(1)/30-The accused-respondent was convicted under section 9(1)/30 of the Nari-O-Shishu Nirjatan
Daman Ain, 2000 and sentenced to suffer imprisonment for life and to pay a fine of Tk 5,000/- in
default, to sufferrig orous imprisonment for 4(four) months more. ...(1)
The State vs. Hafej Bakaul (Criminal) 13 ADC (2016)-Page 179
Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000)
Sections 9(1)—There was no charge of abduction. The prosecutrix reached the bedroom
of the Romeo, on her own accord and stayed there for quite few days. Meanwhile they two came
out and once again went back to the refuge of the appellant. Amidst such free mixing, it is
presumed that these two adults, man and woman, amicably indulged in sexual intercourses. But,
as has been illustrated, the evidence meaning use of force or obtaining consent by deceitful means
remained absolutely missing. Hence the charge of rape appears misconceived.
Sanjay Kumar Biswas vs State (Criminal) 68 DLR (2016)-HCD-185
Section 9(3)-Reducing the sentence from death to imprisonment.
The Appellate Division affirmed that the High Court Division considering tender age of the
respondents, the facts that the respondents were in death cell for a long period and other
circumstances, reduced the sentence from death to imprisonment for life.
The State Vs. Noor Islam (Criminal), 8 ALR (2016) (2)-AD-196.
Section 9/2000 and Nari 0-Shishu B.Bidha Ain 1995/Section 6(2)
Commute the death sentence to imprisonmnent for life
Held; the petitioner has no significant history of prior criminal activity and that he was aged
14
years at the time of commission of the offence and 16 years at the time of framing of charge.
The petitioner has been in the condemn cell since 12.07.2001, that is, more than 14 years.
Considering all aspects of the case, we are of the view that the death sentence of the petitioner be
commuted to imprisonment for life.
BLAST & Anr Vs. Govt. of Bangladesh 24 BLT (2016)-AD-10.
Section 9(1)/2000 and Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995
Sections 6(1), 9(kha) and 9 (Ga)
Without appreciating the narajec petition and without any speaking order accepted the Police report by the Nari-O-Shishu Nirjatan Daman Bishes Adalat cannot be sustained. The High Court Division observed that the informant categorically narrated the manner of occurrence as well as the manner of committing rape by the accused and the Police during investigation in its report merely stated that there is no eye witness to the occurrence. But the informant in his narajee petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most illegally submitted a perfunctory final report. Md. Lutfor Rahman Vs.Md. Musharraf Hossain (Criminal) 8 ALR (2016) (2)-HCD-49
Section 9(1)/2000 Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995
Section 6(4): Death sentence for rape and murder: Extenuating circumstances of 27 years young man and long time detention cannot be a ground for remitting death sentence:
Mr. Khorshed Alam Khan, the learned Advocate for the accused-appellants has made submissions to the effect also that the condemned accused-appellant is a young man of 27 years only and he is being detained in considering this fact as an extenuating circumstances his death sentence may be now commuted to imprisonment of life for the ends of justice. But considering the very nature of the offence which is heinous, ghastly arid barbaric act of rape and murder committed upon a 16 years old girl we are of the opinion that justice will be denied if the death sentence of the accused-Aappellant Rakibor @ Okibor is commuted to imprisonment for life. The law has provided death sentence for some offences....(Para 14). Rokibur Vs. State 4 CLR (2016)-AD-123.
Section 9(1)-Penetration of a finger into the vagina of the victim Tanmim does not constitute the offence of rape punishable under this Act. The High Court Division did not find any other reason to disbelieve the testimonies of PW 2 and PW 3. Penetration of a finger into the vagina of the victim Tanmim does not constitute the offence of rape punishable under section 9(1) of the Nari O Shishi Nirjatan Daman Ain, 2000. Considering the evidence of victim P.W.2 and his father P.W.3 along with inconsistenet evidence of P.W.4 to P.W.5 The High Court Division is of the view that convict appellant did not commit rape on his brothers daughter victim Tanmim, a child of 3 years old, Md. Shakhawat Hossain Vs. The State (Cri) 7 ALR (2016) (1)-HCD-62.
S. 9 Penal Code S. 376-Rape-Consent-Accused allegedly committed rape on victim and after pouring kerosene oil set her ablaze - Material on record shows that victim was minor Victim had made hue and cry on commission of rape on her and immediately threatened accused with disclosure of incident to her mother - Not case of consensual sex -Order of acquitting accused, set aside. Order of Gauhati High Court, Reversed. AIR (2016)-SC-341 (A)
S. 9 Penal Code S. 376-Rape/Child abuse-Punishment of chemical castration-Court cannot provide higher punishment-It could only suggest to legislature-Need has arisen for defining term 'child' in context of rape and providing for more severe punishment in such cases, AIR (2016)-SC 358 (A)
S. 9 Penal Code S. 376-Rape-Consensual Sex-Proof - Allegations that appellant committed rape of prosecutrix in her residential accommodation Testimony of prosecutrix that she was in relationship with appellant for last two years prior to incident and appellant used to stay overnight-In view of FIR, testimony of prosecutrix and MLC report prepared by medical practitioner Alleged act of appellant seems to be consensual in nature - Acquittal, proper. AIR (2016)-SC-406(A).
Sections 7, 9(1) and 30-To ascertain the age of any person teeth is an important factor, the opinion of the doctor as to the age of the victim is not authanticated one. We should bear in mind that age is always depend upon the growth of the person who has been examined, a male or female of 18 years can be found as 15 or 16 years due to lack of his or her development of the body and again a male or female of 18 years can be found as 19 or 20 years and the reason is that his or her development and proberty was earlier. So, the opinion of the doctor as to the age of the victim is not in our view because the way the victim should be examined has not been done. There is no opinion as to the teeth, because as per Modi's Medical Jurisprudence to ascertain the age of any person teeth is an important factor. Modi' has also observed the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depend upon in estimating age in medico legal cases. The impugned judgment and order of conviction and sentence under section 7 of the Nari-O-Shishu Nirjatan Daman Ain 2000 is here by set aside. The convict appellant is acquitted from the charge leveled against him. Mehedi Hasan alias Rasel Vs. The State (Criminal), 5 ALR (2015)-HCD-84.
Section-7/9(3)
Code of Criminal Procedure, 1898
Section—87,88 Since the accused did not appear in the trial Court and could not cross-examine the prosecution witnesses, therefore, it is expedient for ends of justice to send back the case to the trial Court for giving the accused an opportunity to examine the prosecution witnesses if he so desires and also in order that the Court may examine the accused under section 342 of the Code of Criminal Procedure. The State v. Robin, 35 BLD (2015)-AD-18.
Section 9 (2) (3)
He submits that, the High Court Division was totally wrong in coming to the finding that the prosecution failed to prove the charge of rape on Rahima by the two accused punishable under section 9(2) and (3) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. High Court Division solely relied on the opinion of the doctor given in the post mortem report that "No sign of recent sexual intercourse was seen" ignoring the confessional statements of the accused ....(7) The State vs. Siddiqur Rahman (Abdul Wahhab Miah J) (Criminal) 12 ADC (2015)-Page 574
Section 9(2)—Age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. In view of such matter and the decisions referred the Appellate Division was inclined to
commute the sentence of death to one of imprisonment of life.
Manik Vs. The State, (Criminal), 4 LNJ(2015)-AD-213
Section-9(2)-Sentence of death may be modified to one of imprisonment for life on consideration of tender age of the accused and long suffering of the pangs of death in the condemned cell.
Manik v. The State, 35 BLD (2015)-AD-63
Section 9(1)/2000-and Nari O-Shishu B. Bidhan Ain/95 Section 6(2)(4)-The provisions of sub-sections (2) and (4) of section 6 deprive a tribunal from discharging it's constitutional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus, there is no gainsaying that sub-sections (2) and (4) of section 6 of the Am as well as section 303 of the Code run contrary to those statutory safeguards which give a tribunal the discretion in the matter of imposing sentence.
Bangladesh Legal Aid and Services Trust (BLAST) vs State
67 DLR (2015)-AD- 185.
Section 9(1)/2000-and Nari O-Shishu B.Bidhan Ain/95 Section-6(1)
Penal Code,1860
Continuous consent of the victim for sexual intercourse with the accused does not come within the purview of rape as laid down in section 2(M) of Nari-O Shishu Nirjatan (Bishes Bidhan) Ain 1995 and as such framing of charge under section 6(1) of Nari-O-Shishu Nirjatan (Bishes Bidhan) Ain is liable to be set aside.
Idris Miah v. Arafa Begum & The State 35 BLD (2015)-HCD-325
Section 9/2000-and Nari O-Shishu B. Bidhan Ain/95 Section 6(2) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, (Ain XVIII of 1995) and section 34 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (Ain VIII of 2000) has been convicted by the Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Manikgonj for sexually assaulting to death of Sumi Akhter, a minor girl aged at about 7 years (1)
BLAST vs.Minisiry of Home Affairs (Surendra Kumar Sinha CJ),
12 ADC(2015)-Page-245
Section 9(1)/2000-and Nari O-Shishu B. Bidhan Ain/95 Sections 6(1)114 Code of Criminal Procedure, Section 342
In the facts and circumstances of the case no eye witness is supposed to remain present at the time of commission of rape and the sole evidence of the victim and circumstantial evidence ought to have been considered, and also to consider whether the High Court Division illegally acquitted the accused without reversing the finding of the trial Court that all the prosecution witnesses supported the FIR. case and the evidence of the prosecution witnesses were believed and accepted upon giving cogent reasons. The State vs. Mostafizur Rahman (Nazmun Ara Sultana J)(Criminal)
12 ADC (2015)-Page-369.
Section 9(1)-and Nari-O-Shishu B.Bidhan Ain/95 Section 6(1)-Sexual intercourse with consent is not a rape.
There was a continuous consent of the complainant for sexual intercourse with the accused which will not come within the purview of rape as laid down in Ain,1995, therefore, the learned Judge without complying the Provisions of law most erroneously framed charge under Section 6(1)of the Ain, 1995.
Idris Miah Vs. Arafa Begum (Criminal), 5 ALR (2015)-HCD-70. (23) Section 9(1)-and Nari O-Shishu B.Bidhan Ain/95 Sections 6(2)(4)-Death-Since the only sentence is provided for the offence the courts 'will be left with no option other than to award the death sentence. This is totally inhumane and illogical. A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security.
Bangladesh Legal Aid and Services Trust (BLAST) vs State (Civil)
67 DLR (2015)-AD-1.
Section 9(1)/2000-and Nari-O-Shishu B. Bidhan Ain/95 Section 6(2)(4)-Until new legislation is made the imposition of sentence in respect of offences in sub-section(2) and(4) of section 6 of the Ain of 1995 shall be regulated by the Nari-o-Shishu Nirjatan Daman Ain, 2000.
Bangladesh Legal Aid and Services Trust (BLAST) vs State (Civil)
67 DLR (2015)-AD-185.
Section 9(1)-and Nari O-Shishu B. Bidhan Ain/95 Sections 6(1)/14-Rape-The story of rape itself gives rise to a grave suspicion implicating the accused, as such it will be fully within the domain of the appellate court to acquit the accused. The reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, as beyond any reasonable doubt which is the fundament requirement of convic tion. (Per Md Anwarul Haque J, majority)
State vs Mostafizur Rahman (Criminal), 67 DLR (2015)-AD-218.
Section 9(1)-and Nirjatan (Bishesh Bidhan) Ain/95 Section 6(4)-The offence committed by the appellant is so heinous and barbaric in nature that the only punishment for this offence can be the death penalty. To secure the ends of justice this type of offenders must be awarded the highest punishment provided by law, any leniency, if shown to this type of offenders, will cause miscarriage of justice.
Rokibur (Md)@ Rokib@ Okibar vs State (Criminal), 20 BLC (2015)-AD-217.
Section 9(1)-and Nari-O-Shishu Nirjatan Daman (Bis. Bidhan) Ain 1995 Sec.-6(4)-In the present case the offence committed by this accused-appellant Rakibor & Okibor is so heinous and barbaric in nature that the only punishment for this offence can be the death penalty. To secure the ends of justice this type of offenders must be awarded the highest punishment provided by law, any leniency, if shown to this type of offenders, will cause miscarriage of justice.
Md.Rokibur@Rokib@Okibar Vs. The State, (Criminal), 4 LNJ (2015)-AD-207.
Sections 9 (Ga)/6(1)/14 Allegations after 14 days-Benefit of doubt
Non discloser of the material allegation at the earliest opportunities and alleged subsequently after 14 days from the date of occurrence by the P.W. 1 also an element to cast a doubt of the prosecution case while there is no legal and reliable explanation under what circumstances the P. W. 1 informant did not disclose the material allegation neither before the police nor before the Magistrate while she was produced before them immediately after occurrence under Section 54 of the Code of Criminal Procedure.
Md. Shahjahan Ali Vs. The State (Criminal) 5 ALR (2015)-HCD-244.
Section 9(1)-Since a child under the age of sixteen is not in a position to give consent to sexual intercourse or sodomy, the sodomy committed by a man even on a consenting male-child will also come under the mischief of rape punishable under section 9(1) of the Ain. The criminal proceeding in such cases must be instituted and proceeded against the perpetrator-man under the provisions of the Ain.
Abdus Sanad Vs. State, 19 BLC (2014)-HCD-171.
S.9(1),30-Cr.P.C 1898 S.265H
Mere issuance of a process for the attendance of a witness is not enough; The Court must see that the process so issued has been executed.
Hasan ArifUllah Vs. Nilufar Yesmin@Reba & Anr.34 BLD(2014)-AD-8.
S. 9(1)/30-Let us see whether the High Court Division was correct in taking the said views. We have gone through the order sheets of the Tribunal. It does not appear that the process to secure the attendance of the witnesses was exhausted. The allegations made in the FIR being serious in nature, the Tribunal before recording the order of acquittal of the accused was duty bound to ensure that the process for the attendance of the prosecution witnessws was exhausted, but it did not. Therefore, we do not find anything that on some dates hajira of one witness on behalf of the prosecution was filed (it is not clear whether it was the informant),but that witness was not examined on this or that reason..(8).
Hasan ArifUllah Vs. Most. Nilufar Yesmin, 10 ADC (2013)-Page-977.
S. 9(3)-In this case of gang rape committed by three fully grown up men resulting in the death of a helpless teen ager, and thereby smashing her person, her dream, her modesty, her dignity, her chastity being regarded as the invaluable and inviolable asset by any women and when such a crime is committed by the convicts caring the least about the sanction provided for the prevailing law and caring not at all about any social resistance as provided by their pre-plan and conduct, we are surprised to see as to why this case was not treated as a rarest of rare cases and death sentence was not imposed on these three rapists and on their accomplice.
Rehana Begum Vs. State, 63 DLR-HCD-548.
S. 9(1)-Evidence Act (I of 1872) Ss. 45 and 134-The prosecution witnesses have been able to prove the prosecution case beyond reasonable doubt. The Medical Board has categorically observed that the victim was bearing sign of forceful sexual acts when the victim herself and other witnesses have corroborated one another of such facts. Moreso, in the present rape case conviction and sentence can be imposed on the solitary evidence of the prosecutrix as her evidence inspires confidence.
Aku Gazi and another Vs. The State and another, 2 LNJ (2013)-HCD-384.
S. 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000-Cohabitation with consent obtained by deceitful means constitutes rape.
It provides that if any male cohabits with any woman with her consent obtained by fraud by
'staging a drama of false marriage, he commits the offence of rape.
The State V's. Md. Kamal Hossain, 2 ALR(2013)-AD-127.
S. 9(1)-Manner of occurrence as alleged in the FIR is preposterous and suffers from infirmity and improbability. It is admitted that they lived together as husband and wife for six years. The consent of the victim was not obtained practicing fraud. Sexual intercourse was not an act of one day, but for six years. Such act do not constitute an offence of rape punishable under section 9(1) of the Ain.
Golam Ahmed Vs. State, 64 DLR (2012)-HCD-93.
S. 9(4)(kha)-Medical report submitted by the Medical Board pursuant to an order of the Court which is a vital evidence on the part of the prosecution to prove the case of injury inflected by the informant as her self defense and to save her from a heinous crime of rape.
Abdul Haque Dakua Vs. State, 17 BLC (2012)-HCD-257.
(37) S. 9(4)(kha)-The convicts were convicted under sections 9(4)(kha) of the Ain, which is very difficult to prove but the informants desperate act of causing injury made it easier to prove the offence under the provision of the Ain.
Abdul Haque Dakua Vs. State, 17 BLC (2012)-HCD-257.
S. 9(1) and 22-Abu Taher is the licentious father and Baby Akhtar, 8 years old daughter of Abu Taher, is the prey of salaciousness. The loathsome incident of ravishment came into being on 26-04-2002. Such truthful version unveiled in first information report stood proved by informant PW 1 during trial, statement of victim of crime recorded under section 22 of the Ain of 2000 which was well proved by PW 8.Magistrate, First Class, medical evidence furnished by PWs 18.09.10,21 and 22.
Abu Taher Vs. State, 10 BLC (2005)-32.
S. 9(1)-Cognizance of the offence has to be taken on police report not below the rank of Sub-Inspector. Code of Criminal Procedure,1898-Section 173-Police Report after completion of investigation.
Cognizance of the offence under the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be taken of the police report not below the rank of Sub-Inspector of police as contemplated under section 27 of the Ain. This police report must be one submitted under section 173 of the Code of Criminal Procedure, 1898.
Aminuddin (Md.) Vs. The State, 11 MLR (2006)-HCD-289.
S. 9(1)-Offence of rape and punishment-
Section 22-Confessional statement of accused or statement of the victim or witness-
As provided under section 22 of the Ain of 2000 statement of victim or a witness shall be recorded under section 22 of the Ain and not under section 164 of the Code of Criminal Procedure.Statement recorded under section 164 Cr.P.C in case under the Ain shall be treated as one recorded under section 22 of the Ain, 2000.
Md. Washim Mia and another Vs. The State, 9 MLR (2004)-HCD-162.
S.9(1)-As regards first occurrence on 13.03.2001, she deposed that the gave consent to the accused to make sexual intercourse with her as he assured her to marry. Thereafter he used her very often. As regards the 2md occurrence on 10.09.2001 she deposed that when she went out response to natural call, then the accused abducted her and took her to open filed and committed rape. Thus we find a contradictory statement from the victim. It is not the prosecution case that during second time the relation between the accused and the victim was deteriorated and thus the question of abduction does not arise. Hence is appears to us that it is a concocted case.
Monwar Mallik Vs. The State, 17 BLT (2009)-HCD-25.
S. 9 (kha)-When a woman of 18 years of age voluntarily goes with a man and marries him at her own volition no offence is committed.
In a case where the alleged woman of age 18 years of her own went with the accused and married him no offence under section 9(kha) of the Nari-O-Shishu Nirjatan (Bishes Bidan) Ain, 1995 is committed. The impugned conviction and sentence having found not been based on any legal evidence has been set-aside and the convict-appellant has been acquitted by the learned Judge of the High Court Division.
Ahad Molla (Md.) Vs. The State, 11 MLR (2006)-HCD-99.
S. 9(1)-The alleged victim's deposition in reply to cross-examination bore clear manifestation of her being a willing partner in regular intercourse with the appellant. The FIR and her examination in-chief do not mention that she ever resisted or attempted to resist the act of intercourse. She did not also raise any outcry. No offence of rape was therefore committed.
Sohel Rana (Md.) Vs. State, 57 DLR-591.
S. 9(1)-In this rape case victim did not sustain any injury on her face, cheeks or breasts at the time of commission of the alleged rape and the medical Board also did not detect any trace of sexual violence on her face, cheeks or breasts and also did not detect any trace of sexual violence the person of the victim. Thus we find no corroboration with the statement of prosecutrix. In the instant case, the prosecution has hopelessly failed to prove its case beyond all shadow of doubt. The learned trial court without considering the evidence on record erroneously convicted the accused appellant without observing any norms of law.
Md. Khairul Vs. The State, 16 BLT (2008)-HCD-480.
S. 9(1) and 22-The prosecutrix was examined as PW 2 and she fully corroborated her earlier statement recorded by the Magistrate under section 22 of the side Ain of 2000. All other witnesses also corroborated one another as to the commission of rape by the convict appellant. The evidence of doctor also corroborated the prosecution case. There is nothing to disbelieve the consistent evidence of the prosecution witnesses who are disinterested and independent. The prosecution has been able to prove the case beyond all reasonable doubt and hence the judgment and order of conviction and sentence passed by the learned Tribunal Judge is affirmed with slight modification as to the sentence.
Suroj
Ali (Md.) Vs. State, 10 BLC-292.
S. 9(1)-Offence of rape-Delay in lodging complaint-Absence of medical examination-Victim habituated with sexual intercourse-a willing partner-No offence of rape is committed.
There was inordinate delay in lodging the complaint. The victim was not examined by Medical Officer. The victim allowed the accused to cohabit with her on number of occasions and as such was a willing partner in the intercourse. The witness examined do not appear to be worthy credence. In view of the state of the evidence and prosecution story the learned Judge of the Supreme Court
High Court Division held that the prosecution utterly failed to prove the charge beyond all reasonable doubt and set aside the impugned order of conviction and sentence of the convict appellant.
Abdul Kader(Md.)V's. The State, 11 MLR (2006)-HCD-196.
S. 7 and 9(1)-Offence of abduction and rape-Cr.P.C. S. 561A-Quashment of conviction and sentence-Inordinate delay in lodging the complaint without satisfactory explanation renders the prosecution case doubtful.
In her statement recorded under section 164 Cr.P.C. the victim woman of 16/17 years of age stated that her marriage with the convict petitioner was solemnised in the office of the Nikah Registrar and they sowrn in an affidavit to that effect before the Notary Public.Moreover there was inordinate delay of 2.5 months in lodging the complaint after the occurrence without satisfactory examination which rendered the prosecution case doubtful. Medical report shows that the victim was habituated to sexual intercourse. The trial was held in the absence of the accused after the publication of proclamation in the local news paper and as such he was not aware of the trial and could not prefer appeal within the specified time. The learned Judges of the High Court Division having found conviction and sentence not based on legal evidence quashed the same.
Firoj Chokeder Vs. The State, 11 MLR (2006)-HCD-115.
S.9(1)-As regards first occurrence on 13.03.2001, she deposed that the gave consent to the accused to make sexual intercourse with her as he assured her to marry. Thereafter he used her very often. As regards the 2nd occurrence on 10.09.2001, she deposed that when she went out response to natural call, then the accused abducted her and took her to open field and committed rape. Thus we find a contradictory statement from the victim. It is not the prosecution case that during second time the relation between the accused and the victim was deteriorated and thus the question of abduction does not arise. Hence it appears to us that it is a concocted case.
Monwar Mallik Vs. The State, 17 BLT (2009)-HCD-25.
S.9(1)-Offence of rape-nature of proof required-When enmity exists between the parties-Corroboration by independent evidence is necessary-
Prosecution is required to prove the charge by consistent and reliable evidence beyond all reasonable doubt in order to secure conviction. Conviction based on surmise and conjecture cannot be sustainable in the eye of law.
Evidence of prosecutrix who is a grown up woman having husband and children needs to be corroborated by independent witness. When medical report does not support the allegation of rape, when there is enmity between the parties, when the independent neighboring witness are not examined and when the evidences of the P.W.s are sharply discrepant, the prosecution case becomes doubtful leading to the acquittal of the accused-appellant.
Khairul (Md.) Vs. The State, 12 MLR-HCD-409.
S.9(1)-Court should carefully examine the prosecution case as well as the defence version. If the defence put forward an abili on behalf of the accused which seems to be true, the accused is entitled to a verdict of benefit of doubt. There is a basic rule of Criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the
view favourable to the accused. Considering the entire evidence it appears that the prosecution has totally failed to prove its case, moreso, the version put forward by the defence has a reasonable possibility of being true. Hence the accused is entitled to get benefit of doubt not as a matter of grace but as a matter of right.
Khairul (Md.) Vs. State, 13 BLC-HCD-303.
S.9(3) and 30-Charge of rape based on confessional statement of co-accused and other evidence held proved beyond doubt.
Delay in lodging F.I.R. when duly explained held not fatal.
The Appellate Division as well as the High Court Division held the confessional statements of the accused clearly inculpatory and the trial court was in serious error while terming the same exculpatory. The charges are also held to have been proved beyond all reasonable doubt and thereupon convicted and sentenced the convict-appellânts.
Aminur Rahman and others Vs. Fatema Begum and the State,
13 MLR(2008)-AD-249.
S. 9(3), 30-The victim herself has deposited before the tribunal narrating the incident of rape on her and also naming the rapists. This victim is an unmarried college student and comes of a respectable family. She has given testimony before the tribunal outraging her own modesty and honour which are dearest to an unmarried girl. We find no reason to disbelieve the testimony of this victim.
Fatema Begum daughter of Azizer Rahman Vs. Aminour Rahman son Afser Ali & Ors,
25 BLD(2005)-HCD-342.
See 11 MLR-HCD-23.
S. 9(3)-In this case of gang rape committed by three fully grown up men resulting in the death of a helpless teen ager, and thereby smashing her person, her dream, her modesty, her dignity, her chastity being regarded as the invaluable and inviolable asset by any women, and when such a crime is committed by the convicts caring the least about the sanction provided for by the prevailing law and caring not at all about any social resistance as proved by their pre-plan and conduct, we are surprised to see as to why this case was not treated as a rarest of rare cases and death sentence was not imposed on these three rapists and on their accomplice.
Rehana Begum Vs. State, 19 BLT (2011)-HCD-548.
See 16 MLR-HCD-75.
Ss. 7,9(1), 28 and 30-The informant herself appearing in the Court below filed an application that the matter in dispute has already compromised between them so she has no objection in respect of bail of the other co-accused. As the appeal in dispute between the parties have been compromised, so, to establish peace and tranquility in the society, the High Court Division was inclined to enlarge the appellant on bail.
Tota Howlader (Md) Vs. State, 16 BLC (2011)-HCD-761.
S. 9(1)-In the instant case, neither the date of occurrence nor the place of occurrence, manner of occurrence, place of salish, date and time of salish, violation of the order of salish and admission of guilt by accused have been proved by reasonable and believable testimonies it is to be held that although there is evidence but such evidence creates serious doubt in the mind of judges of the High Court Division which is treated as a case of no evidence.
Abul Hashem Vs. State, 16 BLC (2011)-HCD-699. See 31 BLD (2011)-HCD-615.
S. 9(1)-Examination and cross-examination, nowhere it has been stated that there is any resistance or any act of sexual intercourse. There is also no sign of violence as certificate issued by the doctor and all the witnesses categorically stayed that there was marriage in between the victim girl and the appellant.
Zitu Ahsan Vs. State, 59 DLR-528.
S. 9(1)-If after an examination of evidence, the Court is of opinion that there is reasonable possibility that the defence put forward by the accused might be true, such a view reacts on the whole prosecution case. In this circumstances the accused is entitled to benefit of doubt as a matter of right. See 5 DLR (FC) 107. Roni Ahmed Vs. State, 61 DLR-147.
S. 9(1)-Allegation when does not constitute punishable offence-
In the instant case the victim who is major in her age voluntarily with her free consent married the accused and they are living as husband and wife and out of her wedlock a baby has born. The victim was not examined during trial which makes the prosecution case doubtful. Moreover most of prosecution witnesses stated that the victim voluntarily went with the convict appellant and got themselves married. The learned judges of the High Court Division held the allegation do not constitute offence punishable under section 9(1) of the Ain and as such set aside the order of conviction and sentence. Roni Ahmed Liton@ Liton Ahmed Roni Vs. The State 14 MLR (2009)-HCD-412.
S. 9(1)-The unfortunate mature girl mixed with appellant consciously at her own peril and this appellant though knew the fate of the victim girl, took that opportunity of free consent and mixing which does not fall within the purview of any legal action. Kamal Hossain Vs. State, 61 DLR-505.
Rape-Rape is not merely a physical assault. It is destructive of the whole personality of the victim and the helpless female or girl. Rashida Akter (Shakhi) Vs. State, 18 BLC (2013)-HCD-639.
S. 9(3)-Benefit of doubt.-It appears that the medical evidence does not disclose any ingredients of rape as the Board of Doctors found no mark of struggle in the bodies of the victims. If further appears that there is no evidence of recognition of accused Sagir at the time of occurrence alonngwith other five persons. There is no means of recognition and therefore it is highly doubtful that the appellant also participation in the occurrence, even if, it is believed that the victims were raped at 8.00 PM in a dark night. In such view of the matter we find substance in this appeal. Sagir Vs. State, 20 BLT (2012)-AD-91.
S. 9(1)-Rule of corroboration is a Rule of Prudence and this Rule of Prudence must be present in the mind of Judge. There must be a satisfaction on the part of Judge that on the uncorroborated testimony of victim of sex crime it is safe to record conviction upon an accused indicated for an offence of rape. There must be an indication in course of judgment that the Judge had this Rule in his mind when he prepared judgment and if the Judge finds that there is no need for such corroboration he is to assign reasons for dispensing with the necessity for such corroboration. Safazuddin and another Vs. The Sta'e, 27 BLD-HCD-321.
S. 9 read with clausé (Uma) and (Ta) of section 2-of the said Ain
Intercourse with her-Nothing in evidence to indicate presence of any person in and around place of occurrence when incident took place-Testimony of victim consistent-And supported by evidence of her mother which is admissible as res gestae-Medical evidence showing no injuries unreliable as examination was incomplete-Plea that accused has been falsely implicated not substantiated from evidence on record-Conviction, proper.
CrLJ (2016)-3455 (Cal)
S. 9 Penal Code S. 376(2)(g)-Gang rape-Common intention-Allegations that when victim was returning from village, accused persons took her in auto-rickshaw and committed rape on her-Victim has named one of accused in FIR-Medical report discloses that victim had sustained injuries on her person and also on her private part. No material that other accused committed sexual assault on victim-But victim clearly stating thai both accused were together at time of incident and other accused was active participant-Held other accused was equally responsible for offence in as much as even though he has not committed rape-Conviction of both accused proper.
CrLJ (2016)-3054 (Ori).
S. 9 Penal Code S. 375. Rape-Proof-Evidence of doctor stated that vagina would easily admit two fingers-Deceased was thus, habitual to intercourse-Stains of semen were found on skirt (lehanga) of deceased and on under wear of accused-Clothes and blouse of deceased were found in torn condition-'Odani' of deceased was found to contain human blood. These facts were proved by attesting witness-Blood stained stones used for crushing head of victim were recovered from place of occurrence-Hair clips, ear tops and amulet (tabij) of deceased were also found lying nearby-Held that, chain of circumstances was so complete which points towards his guilt-Accused convicted.
CrLJ (2016)-4686 (Raj) (G).
S. 9 Penal Code S. 375-Rape-Absence of injury-Accused over-powered deceased while he committed rape on her-Due to this fact, she did not receive any injuries around her genital parts-This therefore, would not be factor to conclude that deceased was not subjected to rape.
CrLJ (2016)-4686 (Raj) (F)
Code of Criminal Procedure, Section 561A
(1) Nari O-shishu Nirjaton Doman Ain 2000, Section 9Ka
All three had a quarrel while sharing their morning tea. During that course, the appellant is said to have remarked for the deceased to go and die. The deceased went home in a dejected mode, whereafter he committed suicide. Supreme Court of India held that it can not he said that the suicide by the deceased was the direct result of the words uttered by the appellant. Accordingly, proceeding was quashed. similar view has been taken in the case of P. Srini Vasulu V.State,2004 Crl LJ 2718 (AP). In that case wife poured Kerosene over herself and set herself a fire because of abuses of accused husband. It was held that simple abuses ate not sufficient to provoke the victim to commit suicide.....(18)
A.P.M. Sohrabuzzaman vs. The State represented (Hasan Foez Siddique J) (Criminal).
14 ADC (2017)-Page 84.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(1) - Allegation when does not constitute punishable offence
In the instant case the victim who is major in her age voluntarily with her free consent married the accused and they are living as husband and wife and out of their wedlock a baby was born. The victim was not examined during trial which makes the prosecution case doubtful. Moreover most of prosecution witnesses stated that the victim voluntarily went with the convict appellant and got them married. The learned judges of the High Court Division held the allegations do not constitute offence punishable under section 9(1) of the Act and as such set-aside the order of conviction and sentence. Roni Ahmed Liton @ Liton Ahmed Roni Vs. The State 14 MLR (2009) (HC) 412.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(1) - Offence of rape - Delay in lodging complaint - Absence of medical examination - Victim habituated with sexual intercourse - a willing partner – No offence of rape is committed - There was inordinate delay in lodging the complaint. The victim was not examined by Medical officer. Victim allowed the accused to cohabit with her on number of occasions and as such was a willing partner in the intercourse. The witness examined do not appear to be worthy of credence. In view of the state of the evidence and prosecution story the learned judge of the High Court Division held that the prosecution utterly failed to prove the charge beyond all reasonable doubt and set-aside the impugned order of conviction and sentence of the convict appellant. Abdul Kader (Md.) Vs. The State 11 MLR (2006) (HC) 196.
Nari-O-Shishu Nirjatan Matter:- In the facts of the instant case, a 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (Minority View) ..... The State VS Mostafizur Rahman & another, [1 LM (AD) 562]
Nari-O-Shishu Nirjatan Matter:-
In facts, the story of rape itself gives rise to a grave suspicion implicating the accused, respondent; as such it will be fully within the domain of the appellate court to acquit the accused. Moreover, the reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person (Majority View) The State VS Mostafizur Rahman & another, [1 LM (AD) 562]
Section 9(1)
Story of Rape
In the instant case, the doctor P. W. 8 having failed to carry on radiological /chemical lamination to ascertain the rape and mere rupture of hymen the informant-victim in absence of any mark of injury on her body, as she was supposed to obstruct the accused-appellant during the occurrence, justify our findings that the rupture of hymen is not the proper proof in holding that there was rape in this particular case inasmuch as the facts and circumstances as well as the behavior and practice followed by the doctor— P. W. 8 in determining the rape without doing any radiological/ pathological examination followed by absence of chemical examination of wearing apparels of the informant -victim which she was wearing at the time of occurrence clearly justify that the story of rape so brought on is a motivated one inasmuch as it appears from the evidence on record that the father of the informant-victim is not a good man and admittedly 'Ganja' is often taken in his house wherein P.W.2 Bibek and other villagers shares. Suren Bairagi Vs. The State 13 BLT (HCD) 483
Nari-o-Shishu Nirjatan Daman Ain, 2000
Section 9(1) - Cognizance of the offence has to be taken on police report not below the rank of Sub-Inspector
Code of Criminal Procedure, 1898
Section 173 - Police report after completion of investigation
Cognizance of the offence under the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be taken on the police report not below the rank of Sub-Inspector of police as contemplated under section 27 of the Ain. This police report must be one submitted under section 173 of the Code of Criminal Procedure, 1898. Aminuddin (Md.) Vs. The State 11 MLR (2006) (HC) 289.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(1)- Offence of rape - nature of proof required when enmity exists between the parties - Corroboration by independent evidence is necessary.
Prosecution is required to prove the charge by consistent and reliable evidence beyond all reasonable doubt in Order to secure conviction. Conviction based on surmise and conjecture cannot be sustainable in the eye of law.
Evidence of prosecutrix who is a grown up woman having husbanded and children needs to be corroborated by independent witness. When medical report does not support the allegation of rape, when there is enmity between the parties, when the independent neighboring witness are not examined and when the evidences of the P.W.S are sharply discrepant, the prosecution case becomes doubtful leading to the acquittal of the accused appellant. Khairul (Md.) Vs. The State 12 MLR (2007) (HC) 409.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(3) - Evidence of the prosecutrix, an unmarried college girl when inspires confidence can form the sole basis of conviction.
The evidence of the victim who is an unmarried college girl coming from a respectable family having been found trustworthy and sufficiently corroborated by other naural evidence, the learned judges of the High Court Division set aside the order of acquittal and sentenced the accused for the offence under section 9(3) of the Act of 2000 in appeal. Fatema Begum Vs. Aminur Rahman and others 11 MLR (2006) (HC) 23.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(3) and 30 - Charge of rape based on confessional statement of co-accused and other evidence held proved beyond doubt.
The Appellate Division as well as the High Court Division held the confessional statements of the accused clearly inculcator and the trial court was in serious error while terming the same exculpatory. The charges are also held to have been proved beyond all reasonable doubt and thereupon convicted and sentenced the convict- appellants. Aminur Rahman and others Vs. Fatema Beguni and the state 13 MLR (2008) (AD) 249.
Section 9Ka Penal Code S. 306-Abetment of suicide-Quashing of FIR-Suicide committed by Chief Investigating Officer pending investigation in murder case-FIR lodged against respondents for offence U/S. 306 IPC-Suicide note except saying that respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else-Allegations against respondents is vague -No prima facie case made out against respondents -Quashing FIR is proper.
AIR (2015)-SC-3351.
Section 9Ka Penal Code S. 306-Abetment of suicide-Sentence-Accused convicted u/Ss.498A and 306 for ill-treating his wife who committed suicide by hanging-Accused after marriage had secured employment in Gulf countries and used to visit India once in two years only -Accused had taken efforts for mediation to settle differences and though mediation was scheduled to take place on particular day but his wife committed suicide on same day - Thus, sentences imposed on appellant for offences u/Ss. 498A and 306, IPC are directed to run concurrently.
AIR (2015)-SC-303(B).
Section 9Ka Penal Code S. 306 -Abetment of suicide - Proof -Deceased in her dying declaration stating that she had consumed poisonous tablets by mistake - Same corroborated by doctor who had examined her- Accused mother-in-law though behaved stoically in beginning by calling act of deceased as "epileptic fit"-But as soon as she realized gravity of situation she called her son and they took her to hospital-On facts and circumstances, it is clear that her death was a result of an accident and she had mistakenly consumed poisonous tablet as same was kept with other medicines - Even though cruelty aspect meted on deceased has been proved beyond all reasonable doubt - It can-not be said that same had lead her to commit suicide or that accused had abetted in commission of suicide - Conviction of accused for offence punishable under S. 306 r. w.114, set aside. Cri. Appeal No. 101 of 2010, D/-23-2-2015 (Gujarat), partly Reversed.
AIR (2015)-SC 3405 (B)
Section 9Ka Penal Code S. 498-A-Cruelty and abetment of suicide -Proof-Deceased wife committed suicide on account of alleged cruelty committed by accused-husband and in-laws-There is no allegation of any kind of physical torture against accused-in-laws-Evidence on record against them with regard to cruelty is absolutely sketchy and not convincing - Fact that mother-in-law used to rob her money which she earned as wages not established-There is only one singular allegation against accused with whom husband was having illicit relationship that at public place she had threatened deceased that she would be divorced by her husband-Conviction, not proper.
AIR (2015)-SC-2670 (B).
Section 9Ka Penal Code S. 306 -Abetment of suicide-Proof-Deceased wife committed suicide on account of alleged cruelty committed by accused-husband and in-laws -There is no allegation of any kind of physical torture against accused-in-laws-Evidence on record against them with regard to cruelty is absolutely sketchy and not convincing -Fact that mother-in-law used to rob her money which she earned as wages not established-There is only one singular allegation against accused with whom husband was having illicit relationship that at public place she had threatened deceased that she would be divorced by her husband --Conviction, not Proper
AIR(2015)-SC-2670 (B)
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000)
Section 9(ka) - Suicide and abetment-Uttering of abusive language will not amount to provocation to commit suicide and does not constitute abetment unless something more is done
in pursuance of the said utterance of abuses.
Dr APM Sohrabuzzaman vs State represented by the Deputy Commissioner Dhaka (Criminal
68 DLR (2016)-AD-33
Section Ka-The wilful act was done without the consent of the victim or against her
will is totally irrelevant here since they are husband and wife. The phone call was between two
consensual adults, i.e. married couple.
Dr APM Sohrabuzzaman vs State represented by the Deputy Commissioner Dhaka (Criminal)
68 DLR (2016)-AD-331
Section Ka-Section 9Ka provides that, "নারীর সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে সম্ভ্রমহানী"
anticipated a non-consensual act of such a nature where there has been violation of modesty. The
word modesty is not to be interpreted with reference to the particular victim of the act, but as an
attribute associated with female human beings as a class. It is a virtue which attaches to a female
on account for her sex. The word modesty has not been defined in the Am or in the Penal Code.
Dr APM Sohrabuzzaman vs State represented by the Deputy Commissioner Dhaka
(Criminal) 68 DLR (2016)-AD-331
Abetment of suicide-Proof-Allegation that deceased committed suicide due to
harassment by husband and in-laws for non-fulfilment of demand of dowry-Material
contradiction in testimony of father of deceased and contents of FIR.There is no corroborative
evidence with regard to the dowry demands-Material showing that parents of deceased were
happy with their daughter and son-in-law. Plea that deceased was beaten up by accused husband
in morning of her death belied by post-mortem report. Delay of 9 days of Lodging FIR not
explained satisfactorily-Acquittal, proper.
CILJ (2016)-Del-559.
Abetment of suicide and kidnapping-Appellant charged for offence under S. 306-
Conviction for alternative charge under S. 302-Found vitiated-Appellants could not be convicted
under S. 306 even it is presumed that said charge is established-Moreover they have suffered
more than 8 years, imprisonment-So, also appellants cannot be convicted under S. 364, when
charge was framed under S. 365-Sentence of appellants reduced to period already undergone.
AIR (2016)-SC 2447 (B).
ধর্ষণের ঘটনা ঘটার পর পরই অনেক আত্মীয় স্বজনকে জানানাে হইয়াছে সমর্থনের জন্য ইহা অপর্যাপ্ত। উক্ত
ঘটনার বর্ণনা আত্মীয়-স্বজন, প্রতিবেশীকে এবং পরবর্তীতে কর্তৃপক্ষকে জানানাে হইলেও পর্যাপ্ত সমর্থন বলা যাইবে না।
১২ ডিএলআর (এসসি) ২৬৫
ইনকোয়ারী দেওয়া ঠিক নহে,
(13) পুলিশ কনস্টেবলের বিরুদ্ধে যেখানে ধর্ষণের অভিযােগ আছে সেখানে উচ্চতর পুলিশ অফিসারের নিকট
৩২ ডিএলআর (১৯৮০)-২৯৮
(14) পরিস্থিতি বিবেচনায় হত্যার সাথে ধর্ষণের প্রমাণ মিলতে পারে। আসামীর লুঙ্গিতে বীর্যের চিহ্ন হইতে অনুমিত
হয়া যায় ধর্ষণের পর হত্যা করা হইয়াছে,
১২ ডিএলআর (ডডিপি)-৩৪।
(15) জখমের উপস্থিতি অথবা অনুপস্থিতি অবশ্যই অন্যান্য ঘটনার সাথে বিবেচনা করিতে হয়। স্ত্রী যােনিতে জখম
হইলেই উহ আবশ্যকভাবে অথবা অপরিবর্তনীয়ভাবে প্রমাণ করে না যে, ধর্ষণ করা হইয়াছে। অপরপক্ষে, গুপ্তাঙ্গে কোন
জখম না থাকিলে ইহা প্রমাণিত হয় না যে, বাদিনীকে ধর্ষণ করা হয় নাই। ঘটনা হইতে সহজেই ব্যাখ্যা করা যায় যে,
অভিযোগকারীকে পূর্বে Intercourse করা হইয়াছে,
১৮ ডিএলআর (ডব্লিউপি)-৬৭।
Abetment of suicide-Proof-Fact that deceased had been subjected to relentless and
perennial mental trauma by husband and mother-in-law. Evident from perusal of suicide note and
testimony of brother of deceased. There being close nexus between perpetration of cruelty and
commission of suicide. It cannot be said that suicide by deceased not instigated and formented by
accused. Accused convicted u/S. 306.
CILJ (2016)-NOC-8 (HP) (B).
Abetment of suicide-Proof-Suicide committed by pregnant wife in matrimonial home.
Non-ascription of any incriminatory role of accused husband in suicide note. Testimonies of
witnesses insufficient to command inference of cruelty by husband which instigated deceased to
commit suicide. Apprehension that if deceased delivered female child she would be deprecated by
family, is not founded on any pre-natal test- Acquittal, proper.
CILJ (2016)-793 (HP).
Abetment of suicide-Proof-Accused alleged to have received certain amount from
deceased which was not returned and therefore deceased immolated himself- Acts of accused in
not returning of amount does not amount to instigation by accused for committing suicide. Nor
can it said that accused initially aided in any manner in commission of suicide to deceased. Order
framing of charge against accused, set aside.
CILJ (2016)-762 (MP).
Abetment of suicide-Proof-Failure by prosecution to prove that wife was treated with
cruelty by her husband and in laws. Body of wife found floating in lake. Evidence on record
showing that wife was suffering from some mental disorder and she was taken to doctor by her
parents without disclosing this fact to her husband or in-laws. Even if death of wife was accepted
to be suicide still it cannot be attributed to cruelty by accused-Accused entitled to acquittal.
CILJ (2016)-173 (BOM) (B)
Abetment of suicide-Delayed FIR-In unnatural death of daughter, consequential shock
and trauma suffered by parent of deceased is good ground for delay in filing FIR-Delay of only of
7 days in lodging FIR-Not fatal to case.
CILJ (2016)-1758 (Cal) (A).
Abetment of suicide-Presumption-Unnatural suicide death of wife in house of husband-
Allegation that husband used to assult wife with fist and blows-Neighbour of accused specifically
deposing that on night prior to incident of suicide, accused abused deceased by using filthy
language, tortured her and deceased was found crying loudly-Presumption can be drawn that
suicide has been abetted by husband. Conviction, proper.
CrLJ (2016)-1758 (Cal) (B).
Section 10 read with Penal Code (XLV OF 1860]
Sections 143/448/385 and 506
A case which is not proved due to lack of evidence does not necessarily mean that it was false. The Appellate Division observed that it must be realized that there is an ocean of difference a being false and a one being not proved due to lack of evidence. A case which is not proved due to lack evidence does not necessarily mean that it was false. Moreover, the High Court Division has observed that on the selfsame matter the complainant petitioner obtained a money decree by way of compensation and there was no reason or satisfactory ground to admit the complainant's appeal and, accordingly, dismissed the appeal summarily. Appellate Division does not find any reason to interfere with the decision of the High Court Division. Accordingly, petition is dismissed. Md. Shibli Vs. Saima Sultana Hashi, 7ALR (2016)(1)-AD-96.
Nari-O-Shishu Nirjatan Daman, 2000
Section 10 - Offence of sexual harassment - when prima facie truth of the allegations are not established during enquiry, complaint is liable to be dismissed.
The learned judges of the High Court Division held the dismissal of the complaint perfectly justified when no prima facie truth of the allegation of sexual harassment was established during enquiry. The Nari-O-Shishu Nirjatan Daman Tribunal cannot take cognizance of the offence under the Penal Code when no offence is disclosed under the Nari-O-Shishu Nirjatan Daman Ain, 2000. Ms. Ok Kyung Oh Vs. The State and others 13 MLR (2008) (HC) 26.
S. 10 (1)-Penal Code Ss. 302 and 304-The offence of culpable homicide punishable under the Penal Code is cognizable by the Magistrate. The Magistrate did not take cognizance of the offence and did not send the case to the Court of Sessions under section 205C of the Code for trial. The Sessions Judge also took no cognizance of the offence under section 193 of the Code. The conviction under section 10(1) of the Ain cannot be converted to under section 302 of the Penal Code. There is no other alternative but to send the case to the Magistrate having jurisdiction to take cognizance of the offence to proceed with the case in accordance with law, treating it as a case of an offence of culpable homicide amounting to murder or not amounting to murder punishable under section 302 or 304 of the Code. State Vs. Md. Atiqur Rahman @ kamol. 17 BLC (2012)-HCD-630.
S. 10-Sections 10(1) and 14
Code of Criminal Procedure, 1898 (V of 1898)
Section 374-The Ain was promulgated to punish certain heinous offences against the children and woman through special Adalat established by it. If the murder were committed for dowry, only then such Adalat would have exclusive jurisdiction to try such offence. The motive for such offence will decide the jurisdiction of such Adalat. The moment, the Adalat finds no
prof of existence of such notice of dowry, it must take its hands off.
The State Vs. Osena Begum@ Babuler Ma & anr, 23 BLD (2003)-HCD-336.
S. 10-Offence of sexual harassment-
When prima facie truth of the allegations are not established during enquiry, complaint is liable to be dismissed-The learned Judges of the High Court Division held the dismissal of the complaint perfectly justified when no prima facie truth of the allegation of sexual harassment was established during enquiry.
The Nari-O-Shishu Nirjatan Daman Tribunal cannot take cognizance of the offence under the Penal Code when no offence is disclosed under the Nari-O-Shishu Nirjatan Daman Ain, 2000.
Ms. Ok Kyung Oh Vs. The State and others, 13 MLR (2008)-HCD-26.
Sexual Harassment-A person can be liable for tort as well and damages may be claimed against him for such wrong doing as well as against an organization or establishment if it fails to ensure the prevention of sexual harassment and bullying to a woman, where she can work with honour and dignity and without being harassed or disturbed by her male boss or other male colleagues.
British American Tobacco Bangladesh Co Ltd. Vs. Begum Shamsun Nahar
66 DLR (2014)-AD-80.
S. 498-A-Cruelty and harassment-Credibility of evidence-Evidence of father of deceased regarding making payment appellants, accused-Cogent and consistent--Strengthened by bank statements.-Non-mention of details of money paid to appellants-And demand of dowry and cruelty and harassment meted out to deceased in statement of father-Does not affect credibility of father. AIR(2015)-SC-3043 (C).
S. 498-A-Cruelty, to harassment-Testimony of related witness-Reliability-Brother of deceased allegedly went to matrimonial house of his sister-Saw appellant's mother-in-law, father in-law and husband of deceased scolding her for not bringing amount of Rs. 5,00,000/- Evidence of brother remained consistent throughout his cross-examination-Nothing substantial elicited to discredit his version- No doubt can be raised about his version. AIR (2015)-SC- 3043 (D).
Section 10- A case which is not proved due to lack of evidence does not necessarily mean that it was false.
The Appellate Division observed that it must be realized that there is an ocean of difference between a case being false and a one being not proved due to lack of evidence. A case which is not proved due to lack of evidence does not necessarily mean that it was false. Moreover, the High Court Division has observed that on the selfsame matter the complainant petitioner obtained a money decree by way of compensation and there was no reason or satisfactory ground to admit the complainant's appeal and, accordingly, dismissed the appeal summarily. Appellate Division does not find any reason to interfere with the decision of the High Court Division. Accordingly, petition is dismissed. Md. Shibli =VS= Salma Sultana Hashi & another, [1 LM (AD) 545]
Sections 10, 9(4)(kha) - We are also of the view that the High Court Division altered the conviction from Section 10 to Section 9(4)(kha) of the Ain and thereby enhanced the sentence imposed upon the convict-petitioner without giving show cause notice or issuing any Rule upon him and such enhancement has been done without following the due process of law as provided in the statute. The judgment and order of the High Court Division passed in Criminal Appeal No.4692 of 2015 dated 13.06.2016 is set aside. However, since the allegation of Section 10 of the Ain, 2000 has been proved by adducing witnesses from the prosecution side, the judgment and order of the Tribunal is thus restored. ...Mujibur Rahman(Md.) VS The State. [10 LM (AD) 505]
Section 11
Penal Code S. 304-8 -Dowry death-Credibility of evidence-Evidence of father of deceased regarding making payment to appellants, accused - Cogent and consistent -Strengthened by bank statements - Non-mention of details of money paid to appellants - And demand of dowry and cruelty and harassment meted out to deceased in statement of father -Does not affect credibility of father - When he himself was in agony due to death of his own daughter.
AIR (2015)-SC-3043 (C).
Section 11
Penal Code S. 304-B -Dowry death-Cruelty and harassment-Brother of deceased allegedly went to matrimonial house of his sister-law appellant's mother-in-law, father-in-law and husband of deceased scolding her for not bringing amount of Rs. 5,00,000/--Evidence of brother remained consistent throughout his cross-examination - Nothing substantial elicited to discredit his version - No doubt can be raised about his version.
AIR (2015)-SC-3043 (D).
Section 11 Penal Code S. 304-B - Dowry death-Alleged suicide note, not discovered during investigation but it was later produced by appellants, accused-Not proved to be in handwriting of deceased - Even assuming suicide note to be true, fact remains that death of deceased was unnatural - Thus contents of suicide note does not affect consistent version of father and brother of deceased.
AIR(2015)-SC-3043 (F).
(5) Section 11 Penal Code S. 304-8-Dowry death- Evidence -Inland letter allegedly written by person with whom deceased had love affair before marriage - Alleged blackmailing by that person-Plea that it was reason to commit suicide - Said letter not discovered during investigation -But produced by accused in bail application - It raises doubts about genuineness of said letter --Postal seal in letter, not clear -Possibility of letter being fabricated to create evidence to make possible defence cannot be ruled out - Rejection of said letter, proper.
AIR (2015)-SC-3043(G).
Section 11
Penal Code S. 304-8-Dowry death --Evidence -Letter allegedly written by deceased tò her brother-in-l Not recovered during investigation-But produced by accused along with bail application-Father of deceased denied letter in handwriting of deceased -No steps taken by accused to prove it-Plea by accused there were lapses on part of investigation which vitally affect prosecution case-Not tenable.
AIR (2015)-SC- 3043 (H).
Section 11- Penal Code S. 300 - Murder and gang rape-Death sentence-Accused, cab driver and his friend pick up deceased from her residence and took her to, secluded place and gang raped her and thereafter killed her by means of strangulation - Gruesome act of raping victim who had reposed her trust-Followed by cold-blooded and brutal murder of said victim-Coupled with remorseless conduct of accused-Shocks repulses collective conscience of community and courts - Absence of mitigating circumstancc-Case falls within category of rarest of rare cases-Death sentence confirmed. AIR (2015)-SC-2170
Section 11- Penal Code S. 304-8 - Dowry death - Accused husband not living with parents and brother -Stronger proof required to implicate family members of accused - Acquittal of father and brother of accused by HC-Would not entitle accused to be acquitted. AIR (2015)-SC-980 (D).
Section 11
Penal Code S. 304-B - Dowry death - Cruelty "soon before death" -Wife committed suicide within one year's other marriage -It cannot be said that cruelty was not "soon before death. AIR (2015)-980 (E).
Section 11
Penal Code S. 304-8-Dowry death -Demand for dowry and cruelty - Wife allegedly committed suicide within one year of marriage -No evidence to show that dowry demands were made prior to or at time of marriage - Contradiction between statements of prosecution witnesses about convening panchayat regarding dowry demands - Prosecution failed to prove or show deceased wife was treated with such cruelty, connected with dowry demands- Conviction, set aside. AIR (2015)-SC-980 (F).
Section 11
Penal Code S. 304-B-Dowry death-Deceased died within 2.50 years of marriage otherwise under normal circumstances - There is no evidence as to demand of dowry or cruelty and that deceased was subjected to dowry harassment "soon before her death, Conviction of accused persons, not proper. Cri. Appeal No. S-1029-SB of 1998, D/-20-08-2010 (P&H High Court), Reversed. AIR (2015)-SC 2081.
Section 11
Penal Code S.376(2)(g)-Gang rape-Death sentence-Accused, cab driver and his friend pick up deceased from her residence and took her to secluded place and gang raped her and thereafter killed her by means of strangulation-Gruesome act of raping victim who had reposed her trust- Followed by coldblooded and brutal murder of said victim - Coupled with remorseless conduct of accused'-Shocks repulses collective conscience of community and courts. Absence of mitigating circumstance - Case falls within category of rarest of rare cases - Death sentence confirmed. AIR (2015)-SC-2170.
Section 11 (ka) -In order to convict a person and to sentence him under clause (ka) of section 11, there must be evidence that a person so charged either caused death of a st attempted to cause death of a ‘নারী', Nurul Huda vs State (Criminal), 67 DLR (2015)-AD-231
Section 11(Ka)- Sentenced him to death The High Court Division also directed the trial judge to conclude the trial expeditiously and to keep the accused in custody till conclusion of the trial. The learned advocate, however, could not deny the fact that both the trial court and also the High Court Division have found that this accused-petitioner murdered his wife. We direct the trial court concerned to conclude the trail of the case against this accused- petitioner within 6(six) months from the date of receipt of the copy of this order. ..Lokman Sarder =VS= The State, [1 LM (AD) 579]
Section 11(ka)- The murder was cold blooded and brutal without any provocation Section 11(ka) of the Nari- O-Shishu Nirjatan Daman Ain, 2000 provides for capital punishment only. Therefore, the High Court Division took the view that it could not take any lenient view in respect of awarding punishment to the condemned-appellant. Moreover, in the present case, the savage nature of crime has shocked our judicial conscience. The murder was cold blooded and brutal without any provocation. Therefore, the submissions of the learned Advocate for the appellant that imprisonment for life may be awarded to the appellant by converting his conviction from 11 (ka) of the Nari-O-Shishu Nirjatan Daman Ain to section 302 of the Penal Code do not hold good on the facts and in circumstances of the case in hand. Moreover, demand of Tk.10000/- as dowry has been proved by the satisfactory evidence as found by both the Courts below....Abdul Haque (Md.) =VS= The State, [10LM (AD) 472]
Section 11(Ka)- Modifications of sentence
The appellant has been convicted under section 11(Ka) of the Ain, 2000 read with Section 302 of the Penal Code by the High Court Division. From the materials on record, it is found that the appellant No.1 Shahan Shah Sikder (Tito) has been in condemned cell for more than 13 (thirteen) years suffering the pangs of death.
Accordingly, the conviction of the appellant No.1 Shahan Shah Sikder (Tito), son of late Elias Sikder, Village- Tularampur, Police Station & District- Narail is maintained. However his sentence is reduced to imprisonment for life along with a fine of Tk.20,000.00. The jail authority of Jessore jail is directed to shift the convict-appellant No.1, Shahan Shah Sikder (Tito), son of Elias Sikder from condemned cell to regular prison forthwith. The appellant No.2, Aleya Begum, wife of Elias Sikder, Village-Tularampur, Police Station & District-Narail be acquitted of the charge leveled against her. Let her be set at liberty forthwith if not wanted in connection with any other case. Shahan Shah Sikder (Tito) =VS= The State, [10 LM (AD) 630]
Section -11 (Ka) read with Penal Code, 1860 Section -302
Whether the convict appellant can be graced with a verdict of acquittal when charge of section 11 (ka) of the Ain of 2000 could not be pressed into service against them
The case in hand, although, tried by a Tribunal constituted under The Ain of 2000 that Tribunal was, also, the Court of Sessions. In the Judgment learned Judge was described as District and Sessions Judge, Kustia as well as Nari-O.Shishu Nirjatan Daman, Bishesh Adalat, Kushtia. Judgment demonstrates that learned District and Sessions Judge had been, also, exercising the power and jurisdiction of Nari.O- Shishu Nirjatan Daman Tribunal. Fate of the convict-appellant and result of the case would have been the same whether it would have been tried either as a Nari-O- Shishu Case by the Tribunal or as a Sessions case by learned Sessions Judge and if section 11 (ka) of The Ain of 2000 was not attracted in respect of convict -appellant, the offence of section 302 of The Penal Code could be very much pressed into, service against the convict appellant and he could be conveniently tried and convicted for offence of section 302 of Penal Code. The State Vs. Kamruzzaman alias Mantu 13 BLT (HCD)-403
S. 11(ka)-Offence of causing death for dowry-Husbands liability to explain how his wife met her death.
Held: That the husband is under the liability to explain how his wife met with her death when the husband and the wife were living in the same house. But when it is not established that the husband was present in the same house at the time of occurrence the husband does not have the liability to explain as to how his wife met her death. When the characteristics of committing suicide are present and the post-mortem examination report is doubtful the High Court Division acquitted the condemned prisoner which the Appellate Division found nothing to interfere with. State Vs. Md. Sadequl Islam Tushar and others, BSCD (2010) Vol. 13 Page No.88.
See 15 MLR (2010)AD-147.
See 19 BLT (2011)-AD-160.
Same 63 DLR(2011)-AD-134.
Section-11 (Ka)
Demand of dowry
PWs. 1, 2 and 3 admittedly are relatives and they in unequivocal terms in their testimonies testified that after marriage demand of dowry of Taka 20,000/- had been put forth and there had been an agreement entered into between Informant party and accused party in the way that Taka 10,000/-would be paid as dowry to Ainul Haque and out of that amount Taka 8,000/- had been paid in two installments and for payment of rest Taka 2,000/- time had been sought. It, also, came out from evidence of PW3 that PW2 Abdur Rashid constructed a house for Ainul Haque. PW4, though, had been declared hostile from prosecution yet in cross-examination it emerged from his testimony that he heard that uncle of Hosna Nahar constructed a house for condemned prisoner. Demand of dowry, thus, had been established by cogent evidence of PWs 1,2 and 3. The State Vs. Md. Ainul Haque 14 BLT (HCD)-234
Section
11(Ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000; Section 302 of Penal
Code and Section 238 of the Code of Criminal Procedure, 1898: In section 238 of
the Code, it has been provided that when a person is charged with an offence
consisting of several particulars, a combination of some only of which
constitute a complete minor offence, and such combination is proved, he may be
convicted of the minor offence though he was not charged with it. The section
further provides that when a person is charged with an offence, and facts are
proved which reduce it to a minor offence, he may be convicted for commission
of minor offence, although he is not charged with it. In the present case
although the accused were charged with the offence of murder for dowry under
Sections 11(Ka)/30 of the Ain, on the proven facts they were convicted for the
offence of murder only under section 302/34 of the Penal Code. In terms of
punishment, it is very much clear that an offence under Section 11(Ka) of the
Act is graver than an offence punishable under section 302 of the Penal Code.
Hence, an offence under section 302 of the Penal Code can be considered as a
minor offence than that of an offence under Section 11(Ka) of the Ain and
therefore, framing of charge was not required for conviction. (Para 19 and 20)
Alternation of charge from 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 to Section 302 of the Penal Code will not cause prejudice to the accused: In order to convict a person under minor offence, though charged under major offence, the ingredients constituting the offence under the minor offence should be common as that of the ingredients constituting major offence and to convict him, some of the ingredients of the major offence could be absent. Since the offence under Sections 11(Ka)/30 of the Ain is a graver offence wherein the charge as to killing of the wife has been framed along with charge of demanding dowry than that of the case under Section 302/34 where the charge of killing of any person is usually be brought against accused, we are of the view that the alternation of charge from 11(Ka) of the Ain to Section 302 of the Penal Code will not cause prejudice to the accused. (Para 22) 18 SCOB [2023] AD 1
The High Court Division as an Appellate Court has the jurisdiction to convert the
conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal
Code as appeal is the continuation of an original case:
Our final conclusion is that the High Court Division as an Appellate Court has the
jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under
Sections 302/34 of the Penal Code as appeal is the continuation of an original case. An
Appellate Court has the same power as that of the trial Court i.e. the Tribunal and
therefore, as an Appellate Court the High Court Division in the present case is
competent to convert the conviction to secure the ends of justice. Undoubtedly such an
Act of the High Court Division shall in no way prejudice the accused and State;
otherwise order of remand shall entail unnecessary time, money and energy due to
fruitless or useless prosecution and defence. Similarly, the Tribunal which is created
under the Ain shall be deemed to be the Court of Sessions of original jurisdiction and, is
entitled to alter/amend the charge framed under Section 11(Ka) of the Ain to one under
Section 302 of the Penal Code and to dispose of the case finally in accordance with law if
the accused is not otherwise prejudiced. (Para 28) 18 SCOB [2023] AD 1
Nari-O-Shishu Nirjaton Damon Ain (VIII of 2000)
Section 11(Ka) Accused given an opportunity of being heard to defend himself properly by cross examining the pws.
The High Court Division is of the view that reason stated here in above, though a state defence lawyer was appointed at a belated stage to defend the absconding accused, but the said state defence lawyer did not serve the purpose of the instant case for which such appointment was made. Being so, person concerned must be i.e. accused given an opportunity of being heard to defend himself properly by cross examining the PWs. It is a sine qua non of the right of fair hearing of an absconding accused. The State Vs. Alam Malitha (Criminal) 9 ALR (2017) (1)-HCD-60.
Section 11(ka) The Nari-O-Shishu Nirjatan Daman Tribunal, Nilphamari (wrongly writ as Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Nilphamari) by the judgment and order dated 16.03.2002 convicted the accused-appellant Anarul @ Anarul Hoq under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him ..(5) Anarul @ Anarul Huq vs. The State (Md. Muzammel Hossain C)(Criminal) 12 ADC (2015)-Page 569
Section 11(ka) There is a fine distinction in the degree of bodily injury between `dangerous to life and likely to cause death. Another type of bodily injury, which is sufficient in the ordinary course of nature to cause death, is also to be recognised. However, the injuries which prove fatal remotely by inter-current disease, such as tetanus, and eryp sipelas should not be considered dangerous. Nurul Huda vs State (Criminal), 67 DLR (2015)-AD-231.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(ka) - Offence of causing death for dowry - Husband liable to explain how his wife met her death.
Law is well settled that the husband is under the liability to explain how his wife met with her death when the husband and the wife were living in the same house. But when it is not established that the husband was present in the same house at the time of occurrence, the husband does not have the liability to explain as to how his wife met her death. When the symptoms of committing suicide are present and the postmortem examination report is doubtful, the High Court Division acquitted the condemned prisoner which the Appellate Division found nothing to interfere with. State Vs. Md. Sadequl islam Tushar and others 15 MLR (2010) (AD) 147.
Section 11(Ka)-Demand of dowry from the side of husband or his family is the pre-condition to attract section 11(ka) of the Ain of 2000.
The State Vs. A. Awal, (Criminal), 4 LNJ(2015)-HCD-190.
Nari-O-Shishu Nirjaton Damon Ain (VIII of 2000)
Section-11(ka)-Though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice.
The State Vs. Nizam Uddin, (Criminal), 4 LNJ (2015)-HCD-351.
Section 11(Ka)-If the death is caused for demand of dowry, it will come within the mischief of section 11(Ka) of the Ain.
State vs Md. Golam Sarwar @ Ripon (Criminal), 67 DLR (2015)-HCD-407.
Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 2000 (VIII of 2000)
Section 11(ka)-When the wife met with her death while she was in the custody of her husband it is he who is to explain how she met with her death. A person who caused death of his wife life out of sheer greed has no right to live in this world. He has committed cold blooded murder of a simple village girl just because her parents and she had failed to meet his illegal demands. In sch a situation, the Tribunal has committed no illegality in passing the sentence of death.
The State Vs. Khorshed Pesker (Criminal), 5 ALR (2015)-HCD-100.
Sections 11(M)/30-Allegations that complainants' daughter married with accused No.1 and since marriage all the accused persons conjointiy used to torture his daughter for the cause of dowry-Held; The allegation of torture does not mean causing hurt. Thus the vague and unspecific allegation of torture made in the First Information Report/complaint does not attract an offence under Sections 11(M), 11(M)/30 of the Ain, 2000.
Md.Samidul & Ors Vs. The State, 23 BLT (2015)-HCD-10.
S. 11(ka)-Jurisdiction over the subject matter is a condition precedent to the acquisition of authority over parties and if a court has no jurisdiction over the subject matter, consent of the parties cannot confer such jurisdiction and a judgment made without jurisdiction is absolutely null and void State Vs. Bahar Miah, 56 DLR-454.
Dowry death-Deceased dying unnatural death in matrimonial home month after marriage-Demand for dowry and beating given to deceased-Spoken to by brother and mother of deceased-Fact that mother had failed to speak before police about beating given to deceased-Held was not sufficient to disbelieve her-Accused though claiming that deceased was heart patient and died natural death. Not examining doctor treating deceased to substantiate his explanation-Accused thus unable to rebut presumption under S. 113B-Conviction of accused proper. AIR (2013)-SC 2015 (A).
Grievous hurt-Sentence-Appellants caused head injury on victim by lathi-Occurrence took place on account of dispute between parties over right to have drain in passage-No specific role assigned to any of five convicts-Three out of five convicts released on probation of good conduct mainly on consideration of their old age-Oarity claimed by remaining appellant on account of similar role assigned to all convicts is misconceived-Considering genesis of occurrence-Sentence reduced from five years to three years RI. AIR (2016)-SC-2710.
Dowry death-Soon before her death-Means interval between cruelty and death should not be much-Live and proximate link between cruelty and death should exist. AIR (2013)-851 (A).
Dowry death-Dowery death-Demand for dowry-Sewing-machine demanded by accused-Mother of deceased wife clarifying that it was gift to her daughter from them for tailoring clothes-Demand cannot be considered as demand made by husband for himself or his family members-Acquittal proper. SC AIR (2016)-SC-882(C).
S． 11（Kha）／30-There is vague and unspecific allegation of torture. Mental or physical torture and causing hurt or injury are not the same act. The allegation of torture does not mean causing hurt. Thus the vague and unspecific allegation of torture made in the First Information Report does not attract an offence under section 11(ka) of the Ain. So, the allegations made in the first information report, even if are taken as true, do not constitute an offence punishable under section 11(kha) or 11(kha)/30 of the Ain. Therefore, the proceeding should be quashed to prevent the abuse of process of the court and for ends of justice. MM Ishak Vs. State and anr, 56 DLR-516.
S. 11(ka)-The circumstances of the present case do from rosary and there is no missing link between one bead and another bead, chain of circumstances against condemned prisoner is so complete that it does not leave any reasonable doubt for a conclusion consistent with his innocence and on the other hand, it only points out that within all human probability it is condemned prisoner who is the perpetrator of crime who killed his wife. Hosna Nahar State Vs. Aminul Hoque, 9 BLC-529.
S. 11(Ka)-From circumstantial evidence it has come to light that convict-appellant had caused the death of deceased and a clear case of murder had been brought home to the door of appellant. If section 11(ka) of the Ain of 2000 was not attracted in respect of convict-appellant the offence of section 302 of the Penal Code could be very much pressed into service against the convict-appellant, and he could be conveniently tried and convicted for offence of section 302 of the Penal Code. The State Vs. Sonowar Hossain Joarder, 2 LNJ (2013)-HCD-462.
Ss.11(Ka)(Kha), 27 and 30-An abetment may be said to be committed by a person who, by his engagement or act or illegal omission, instigates any person to do a thing. Here,in the instant case,the accused No. 1, at the instance of accused-appellants, demanded dowry from the informant. For realization of dowry, accused No. 1 inflicted an iron-blow on the left side of head of informant; accused-appellant No.1 obstructed the informant from coming out of the room and accused-appellant No.2,by holding hair of the informant, pushed her towards the door from which the informant received hurt on her left side of forehead. Under the circumstances,the prosecution materials,reveal abetment of offences against the accused-appellants. Jahid Hassan and another Vs. The State and another, 1 LNJ (2012)-HCD-198.
Section-11-S. 11(ka)-Penalty for causing death for dowry- The settled principle of law is that in a wife killing case when it is established that both the husband and the victim wife were residing on the same house at the relevant time, the husband is under the obligation to explain the circumstances under which his wife died. When the charge is proved beyond all reasonable doubt the sentence of death is held to be perfectly justified. State Vs. Md. Ainul Haque, 9 MLR (2004)-HCD-393.
S.11(1)-The evidence of all the prosecution witnesses in respect of demanding dowry and causing death by the condemned prisoner while she was in the custody of her husband are consistent, uniform and corroborative with one another in all material particulars. The impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. The prosecution has successfully proved the charge against the condemned prisoner. The State Vs.Shahdat,1 LNJ(2012)-HCD-558.
Ss. 11(ka) and 30-All that is required at the stage of framing charge is to see whether a prima facie case regarding commission of certain offence is made out. The truth,veracity and ffect of evidence which prosecution proposes to adduce at the trial is not to be meticulously judged at the stage of framing charge. In the instant case, the accused-appellants stand indicated for offence punishable under section 11(kha) of the Ain of 2000 and cognizance had been taken under that section. Tribunal framed charge against accused-appellants under section 11(kha) and 30 of the Ain of 2000. The offence punishable under section 11 (kha) and 30 of the Ain of 2000 has been clearly disclosed. Non-taking of cognizance against accused-appellants under section 30 of the Ain of 2000 cannot be a bar in framing charge under section 30 of the Ain of 2000. Abu Hanif (Md.) and another Vs. State, 7 BLC-549.
S.11(ka)-Demand of dowry-PWs. 1,2 and 3 admittedly are relatives and they in mequivocal terms in their testimonies testified that after marriage demand of dowry of Taka 20,000/-had been put forth and there had been an agreement tired into between informant party and accused party in the way that Taka 10,000/- would be paid as dowry to Ainul Haque and out of that amount Taka 1,000/- had been paid in two installments and for payment of rest Taka 2,000/- time had been sought. Is also, came out from evidence of PW3 that PW2 Abdur Rashid constructed a house for Ainul Haque. PW4, though, had been declared hostile from prosecution yet in cross-examination it emerged from his testimony that he heard that uncle of Hosna Nahar constructed a house, for condemned prisoner. Demand of dowry, thus had been established by cogent evidence of PWs 1, 2 and 3. The State Vs. Md. Ainul Haque, 14 BLT-HCD-234. See 24 BCR-HCD-220.
Section 11(Ka)-If the death is caused for demand of dowry, it will come within the mischief of section 11(Ka) of the Ain. State vs Md Golam Sarwar @ Ripon, 67 DLR 407
Section 11(Ka)-The prosecution miserably failed to prove the case of dowry. So no case was proved under section 11(ka) of the Ain rather it has proved the case of murder under section 302 of the Penal Code. Invoking Article 104 of the Constitution, the sentence should be altered to imprisonment for life under section 302 of the Penal Code instead of death under section 11(ka) of the Ain, 2000. Anarul @ Anarul Huq vs State, 67 DLR (AD) 172
Section 11(Ka) In order to convict a person and to sentence him under clause (ka) of section 11, there must be evidence that a person so charged either caused death of a 'নারী' or attempted to cause death of a 'নারী', Nurul Huda (Md) vs State, 67 DLR (AD) 231
Section 11(Ka) There is a fine distinction in the degree of bodily injury between 'dangerous to life' and 'likely to cause death. Another type of bodily injury, which is sufficient in the ordinary course of nature to cause death, is also to be recognised. However, the injuries which prove fatal remotely by inter- current disease, such as tetanus, and erypsipelas should not be considered dangerous. Nurul Huda vs State (Cri) 67 DLR (AD) 231
Section 11(Kha) Naraji Petition- Narajee is to be treated as fresh complaint, the Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings and discharge the accused where no sufficient ground exists. Rabeya Khatun vs Dr Md Shahadat Hossain, 67 DLR 447
S. 11(kha)-Offence of causing hurt for dowry. When the allegation of causing hurt is not for any demand for dowry section 11(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 is not attracted. Delay in lodging F.I.R. When not satisfactorily explained casts doubt about the credibility of the prosecution case. Kishore Kumar Datta Vs. The State, 11 MLR (2006)-HCD-329.
Sections 11(Kha) and 30- Merely signing the salishnama does not necessarily imply that the complainant admitted the allegation brought against her-
The Appellate Division directed that the following paragraph be expunged from the judgement and order of the High Court Division: The trial court should have taken into consideration that the victim was not a person of good character particularly exhibit-X shows that she had an illicit connection with her brother-in- law (বড় ভগ্নিপতি) which had been admitted by herself in putting her signature in a salishnama, accordingly petition was dismissed. The State VS Md. Rofizal Haque, [1 LM (AD) 550]
S. 11(kha)-Delayed lodged of F.I.R. truthfulness incident took place on 22.08.2001.It has been exposed to view from the testimony of PW1 that her brother on getting information on 23.08.2001 recovered her with police force from her father in law's house in injured condition and kept her in the house of her husband kindred elder brother Rabi Dutta (PW6). It also emerged from the testimony of Pwl that her brother (PW4) got her admitted in Commila Sadar Hospital on 24.08.2001 and treatment was provided to her. Information could be conveniently supplied to the Police Station by the brother of PWI on 23.08.2001 or 24.08.2001 when PW1 was allegedly recovered from the house of her father-in law. First Information Report could be laid with the Police Station on 24.08.2001 when PW1 was admitted into Comilla Sadar Hospital but no First Information Report was lodege after the incident. Curiously enough to note that First Information Report was lodged after a period of eight(8)days of the incident and it was registered with Police Station on 30.08.2001.Explanation offered in First Information Report for the delay caused cannot be characterized to be reasonable and acceptable explanation. Long delay in laying First Information Report was a serious doubt in the truthfulness of prosecution version and this delay pulverized the integrity of prosecution anecdote. Structure founded by prosecution in securing conviction and sentence upon convict-appellant collapsed. Kishore Kumar Dutta Vs. The State,15 BLT-HCD-174.
S. 11(kha)-The testimony of PW 8 and PW 9 (medical witnesses) corroborated both the incidents. The learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Satkhira is justified in convicting and sentencing the accused-appellant under section 11(kha) of the Nari-O-Shishu Nirjatan Daman Ain,2000. Anisur Rahman (Md.) Vs. State,10 BLC 629.
Section 11(Kha)Naraji Petition-Narajee is to be treated as fresh complaint, the Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings and discharge the accused where no sufficient ground exists. Rabeya Khatun vs Dr Md Shahadat Hossain (Criminal) 67 DLR (2015)-HCD-447.
Section 11(ka)The Code of Criminal Procedure, Section 342
We find no reason not to put reliance on this postmortem examination report. The doctor who held post mortem examination on the dead body and prepared this report also has been examined by the prosecution as P.W. 14. This doctor witness also has deposed before the trial court to the effect that during postmortem examination he found some postmortem burns on the dead body and on dissection he found antimortem blood stain in the subcutaneous tissue to the anterolateral side of the neck and did not find any sing of inflammation in the burn area and that in his opinion the death was due to asphyxia as a result of throttling which was anti-mortem and homicidal in nature.. (7) Arifur Rahman vs. The State represented (Nazmun Ara Sultana J) (Criminal) 12 ADC (2015)-Page-156.
ধারা ১১(খ)
আইন এর মূল উদ্দেশ্যই হচ্ছে নারী ও শিশু নির্যাতন অপরাধ কঠোরভাবে দমন করা সেহেতু নির্যাতনের নুতন করিয়া ব্যাখ্যার কোন অবকাশ রাখে না। কেননা যে কোনভাবে শারীরিক বা মানসিক নির্যাতনের ফলে পরবর্তী যে অবস্থা দাড়ায় তাহা হইতেছে শারীরিক নির্যাতনের ফলে আঘাতপ্রাপ্ত বা জখমপ্রাপ্ত হওয়া এমনকি মৃত্যু ঘটিতে পারে। এইক্ষেত্রে আইন এর ১১ ধারায় সুস্পষ্টভাবে নির্যাতনের পূর্ব অবস্থা বর্ণিত না থাকিলেও পরবর্তী অবস্থায় যে প্রতিফল হয় যেমন জখম কিংবা মারাত্মক জখম কিংবা সাধারণ জখম তাহার সুস্পষ্টভাবে উল্লেখ আছে। আঘাতের ফলে জখম কিংবা নির্যাতনের ফলে জখম এই জখমের ভিন্নতর কোন সংজ্ঞা দেওয়ার অবকাশ নাই। আব্বাস উদ্দিন বনাম রাষ্ট (ফৌজদারী), ৫ এ. এল. আর (২০১৫)-এইচসিডি-৩৮৫.
Section 11(Kha)/30-The learned Nari-O-Shishu Nirjatan Daman Tribunal without framing charge discharged the accused
Held:-The grounds taken for for discharge of accused are that on 11.08.2003 victim Lovely Akter was divorced by her accused husband Sultan and subsequently notice was served on 12.10.2003. It is well settled that the aforesaid documents are the subject matter of trial, such grounds are absolutely a disputed question of fact and the same should be decided at the time of trial. The plea of the accused for discharge are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceeding should not be stifled before trial when there is a primafacie case for going for trial. In view of such facts the grounds taken by the defence are not the correct exposition of law. On meticulous examination of the allegațion of the informant, charge sheet, impugned order and the grounds taken in the petition of the appeal, we are of the view that there are sufficient materials against the accused respondents for going for trial. In view of the above facts and circumstances of the case we are of the view that the learned Judge of the Tribunal committed error of law in discharging the accused from the case. Md. Taiob Ali Mollah Vs. Sultan & Anr, 22 BLT(2014)-HCD-88.
S.11(Kha)-Cr.P.C.Sec.237-
Conviction even without framing cgarge on a particular count.
The accused may be convicted of the offence which was proved against him although no charge was framed. Ingredients of section 11(a) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 are very much present in this case against the appellant-petitioner and in view of the provision of section 237 of the Code of Criminal Procedure he may be convicted of the offence which was proved against him although no charge was framed under section 11(a) as the same offences are of cognate nature. Conviction of the appellant-petitioner under section 11(a) was rightly found to be in accordance with law. Md.Harun-ur-Rashid Vs. The State, 3 ALR (2014)-AD-104.
Nari-O-Shsihu Nirjatan Daman Ain, 2000
Section 11(Kha) - Offence of causing hurt for dowry
When the allegation of causing hurt is not for any demand for dowry, section 11(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 is not attracted. Delay in lodging F.I.R. when not satisfactorily explained casts doubt about the credibility of the prosecution case. Kishore Kumar Datta Vs. The State 11 MLR (2006) (HC) 329.
Sections 11(Kha) and 30
Merely signing the salishnama does not necessarily imply that the complainant admitted the allegation brought against her, The Appellate Division directed that the following paragraph be expunged from the
judgement and order of the High Court Division: The trial court should have taken into consideration that the victim was not a person of good character particularly exhibit-X shows that she had an illicit connection with her brother-in-law (eo fw MoecwZ) which had been admitted by herself in putting her signature in a salishnama, accordingly petition was dismissed.
সর্বশেষ আদালতে প্রমাণ না হওয়া পর্যন্ত অপবাদ দেয়া যাবে না।
আপীল বিভাগ এই মর্মে নির্দেশ দিয়েছিলেন যে, হাইকোর্ট বিভাগের রায় ও আদেশ থেকে নিমোক্ত অনুচ্ছেদটি বাদ দেয়া হােক: উত্তম চরিত্রের লােক নয় বিশেষ করে প্রদর্শনী-১০ এর মধ্যে দেখা যায় যে, সে তার ভগ্নিপতির সঙ্গে একটা বেআইনী ও অনৈতিক সম্পর্ক গড়ে তুলেছিল সেটি সালিশনামায় সই স্বাক্ষরের মাধ্যমে সে নিজেই স্বীকার করেছে এবং তাই পিটিশনটি খারিজ করা হয়। The State Vs. Md. Rofizal Haque (Criminal) 7 ALR (2016)(1)-AD-24.
S. 325-Voluntarily causing grievous hurt-Sentence -Conviction of accused u/S. 307 altered to one u/S. 325 --At time of incident accused were young-They have been dismissed from services and have also undergone about 17 months RI -On facts and circumstances, sentence of 3 years rigorous imprisonment would meet ends of justice. AIR (2015)-SC-3101 (B)
S.325 - Voluntarily causing grievous hurt -Two lathi blows inflicted on head of injured by appellant -X-ray report showing that there was fracture of frontal bone of head of injured and there was callus--Fracture or dislocation of bone falls in category of grievous hurt-Having regard to nature of injuries and X-ray report --Conviction u/S. 325, proper. AIR (2015)-SC-3139 (A)
S. 325 - Voluntarily causing grievous hurt -Sentence - Imposition of sentence is always matter of discretion of Court-Supreme Court cannot interfere unless discretion has been exercised arbitrarily or capriciously or on unsound principles - Considering fact that accused inflicted two lathi blows on victim in sudden fight and in fit of passion-Sentence of imprisonment of seven years reduced to three years. AIR (2015)-SC-3139 (B)
It appears that the High Court Division, on consideration of the FIR., 161 statements of The witnesses and also 164 statement of a co-accused, found that the FIR story that this accused- respondent Faridul Alam murdered the deceased has not been supported by the confessional statement of the co-accused wherein it was stated that another accused Raza Mia killed the deceased-granted bail to this accused-respondent. This accused-respondent has already been released from the jail custody and is on bail since few days after passing of the impugned judgment and order... (3) The State vs. Faridul Alam (Nazmun Ara Sultana J) (Criminal) 12 ADC (2015)-Page-98.
S. 11(Kha) and 30-Ingredients necessary for framing charges.
Penal Code, 1860 (XLV of 1860)
Sections 313 and 315
All that is necessary at the stage framing of the charge is to see whether a prima facie case has been made out regarding the commission of certain offences or offence. The truth and effect of the evidence to be adduced at the trial cannot be judged at this stage. In the present case, the accused stands charged for the offence punishable under section 11(kha), 30 of the Ain, 2000, and cognizance has been taken thereunder. Since a prima facie case has clearly been made out to go for the trial, there is nothing wrong in framing the impugned charges. Ms. Morzina Khatun Vs. Saiful Islam Sarkar, 3 ALR (2014)-HCD-335.
S.11(kha)-The allegation of torture does not mean causing hurt. The vague and unspecific allegation of torture made in the First Information Report does not attract an offence. Umme Kulsum@ Zinat Ara Vs. Shahidul Islam, 19 BLC (2014)-HCD-17. See 22 BLT(2014)-HCD-48.
S.11(Kha)-Considering the FIR and Naraji petition it appears that the allegation made therein are contradictory to each other. Moreso, the informant was divorced on 14.1.2002 by the accused and notices were duly served upon her. After giving divorce the question of demanding of dowry does not arise. The vague and unspecific allegation of torture made in the FIR does not attract an offence under section 11(Kha) of the Ain. So,the allegations made in the FIR, even if are taken as true, do not constitute an offence punishable under section 11(Kha) or 11(Kha)/30 of the Act. Most. Umme Kulsum @ Zinal Ara Vs. Shahidul and others, (Cri), 2 LNJ (2013)-HCD-235.
Section 11(Ga)-The High Court Division found that the incident of assault on the complainant is alleged to have occurred on 06.02.2009, whereas the accused husband claims to have divorced the complainant on 19.01.2009. The High Court Division observed that since the divorce took place earlier, the victim was not supposed to be present in the house of her husband after 19.01.2009. The State Vs. Md. Rofizal Haque (Criminal) 6 ALR (2015)-AD-90
S.11(ga)/30-Code of Criminal Procedure (V of 1898), S. 342-It appears that at the time of examination under section 342 of the Code of Criminal Procedure the trial court failed to put the incriminating evidence against the convict-appeliants for the purpose of enabling them to explain the circumstance and thereby the convict-appellants have been highly prejudiced.There is no legal evidence to convict the appellants. The prosecution witnesses are almost family members of the victim. The learned Judge has not applied his Judicial mind in passing the order of conviction and sentence, as such, the same is liable to be set aside.
Jharna Begum and others Vs. State, 1 LNJ (2012)-HCD-643.
Same 32 BLD(2012)-HCD-542.
Nari-O-Shishu Nirjatan Daman Ain (Amended) 2003
Section-11(Ga) read with Code of Criminal Procedure, 1898 Section-561A
Allegation that informant's Husband with Be active help of the Petitioners (Husband's brother and Sister) assaulted on her with intent to cause her miscarriage which caused simple injury on her Person After completing investigation Police recommending for discharging the present accused petitioner's from allegations as because during investigation police could gather any sorts of tangible evidence to connect this petitioner's -Held; we are of the view that there is no clear evidence or legal basis to justify the order of taking cognizance so far it relates to the accused petitioners under Section 11 (Ga) of the Nari-O-Shishu Nirjatan Daman Ain (Amended) 2003 ignoring the police report under section 173 Cr.P.C.-Rule is made absolute. Jannatul Ferdous @ Kushum & Anr Vs. The State 14 BLT (HCD) 567
Ss.11(Ga) and 11(Ga)/30-The allegation of torture does nor mean causing hurt. Such vague and unspecific allegations of torture as made in the FIR/Complaint does not attract an offence under sections 11(Ga), 11(Ga)/30 of the Ain, 2000. The learned judge erroneously framed charge against the appellants cannot be sustained. Md. Samidul and others Vs. The State, 2 LNJ(2013)-HCD-312.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Sections 11(Ga) and 30 - Offence of causing hurt to wife for dowry
When no injury is caused to the wife and the occurrence takes place elsewhere in which the relatives of the wife are assaulted by the accused in demand for dowry, the allegations do not constitute offence punishable under section 11(Ga) read with section 30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. Having regard to the position Of law the learned judges of the High Court Division set aside the impugned order of taking cognizance under section 11(Ga) and 30 of the Ain and directed the Chief Judicial Magistrate, Bagerhat to proceed with the trial of the offence under the Penal Code. Nakib Ashraf Ali and another Vs. The State and another 14 MLR (2009) (HC) 286.
Sections 11(Ga)/30
Code of Criminal Procedure, Section 265(c)
The High Court Division came to a finding that admittedly the date of occurrence was on 05.09.2009 which was subsequently to the date of division and that the instant case was filed on 11.09.2009. Therefore, the High Court Division concluded that the order dated 18.01.2011 passed by the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Comilla, rejecting the application of the accused for discharge under section 265(C) of the Code of Criminal Procedure and framing of charge against them should be set aside. Rowshan Ara Begum vs. Md. Mizanur Rahman (Syed Mahmud Hossain J) (Criminal) 12 ADC (2015)-Page-96.
S. 11(Ga) read with Cr.P.C, 1898; S. 561A-Allegation that in formant's Husband with the active help of the Petitioners (Husband's brother and Sister) assaulted on her with intent to cause her miscarriage which caused simple injury on her Person. After completing investigation Police recommending for discharging the present accused petitioner's from allegation as because during investigation police could not gather any sorts of tangible evidence to connect this petitioner's-Held: we are of the view that there is no clear evidence or legal basis to justify the order of taking cognizance so far it relates to the accused petitioners under Section 11(Ga) of the Nari-O-Shishu Nirjatan Daman Ain (Amendment) 2003 ignoring the police report under section 173 Cr.P.C. Rule is made absolute.
Jannatul Ferdous@Kushum & Anr Vs. The State, 14 BLT-HCD-567.
S.11(Ka)/30-
In respect of demanded of dowry money
In the instant case, Prosecution examined as many as 10 witness-Informant examined as PW1 who stated that on his dictation the police officer recorded the F.I.R. But P.W.2 in cross examination stated that he wrote the F.I.R. It is glaring contradiction in respect of lodging and writing of F.I.R. and that all the witnesses made contradictory and inconsistent statements to each other and this fact of payment of dowry money is not at all proved and further more in the four corners of this case it is absent that when this dower money was demanded or on whose presence it was demanded, so from all those given facts the prosecution has miserably failed to prove the fact of demand of dowry and payment of dowry.
The State Vs. Md. Akinur Rahman@Akibul, 19 BLT (2011)-HCD-406
Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]
Sections 11(Ga), 28 and 30
Demanded a dowry
It turns out from the inquiry report that there is no mention that the inquiry office found truth in the allegation of the complainant that she went to the police station with her complaint but the police refused to entertain the complaint. In the absence of prove of above claim the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal committed serious illegality in framing charge against the appellants. [2023] 27 ALR (HCD) 30
S.11(Ga)/30
Judges should remember that they are bound by law, not by emotion or any other extra judicial matters and Judges must keep themselves above the emotion, gender, caste and creed of the litigant public.
(57)S.11(ka)/30 Hossain Md. Rajib Vs. The State, 31 BLD (2011)-HCD-368.
The proposition of law is now well settled that on the basis of defence plea or materials a criminal proceeding should not be stifled before trial when there is a prima facie case for going for trial.
Abdul Gaffar & Ors. Vs. The State, 31 BLD (2011)-HCD-564.
Nari-O-Shishu Nirjatan Daman Ain, 2000-S. 11(A)-Cr.P.C.S.374-There is no legal evidence on record to hold that the accused demanded any dowry from the victim or from her relatives or that the accused assaulted the victim on the date of occurrence on demand of dowry. The post mortem report is not clear and it cannot be said that the victim died as a result of injuries found on her person rather the opinion of the Board that the death of the victim was due to combined effect of poisoning and injuries. Thus the accused is entitled to be benefit of doubt. State Vs. Md. Halim Howlader, 26 BLD (2006)-HCD-438.
Code of Criminal Procedure, 1898 (V of 1898)-Section 237
Nari-O-Shishu Nirjatan Daman Ain, 2000 (XIII of 2000)
Section 11(Kha)-Conviction even without framing charge on a particular count. The accused may be convicted of the offence which was proved against him although no charge was framed. Ingredients of section 11(a) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 are very much present in this case against the appellant-petitioner and in view of the provision of section 237 of the Code of Criminal Procedure he may be convicted of the offence which was proved against him although no charge was framed under section 11(a) as the same offences are of cognate nature. Conviction of the appellant-petitioner under section 11(a) was rightly found to be in accordance with law. Md Harun- ur-Rashid Vs. The State (Criminal),3 ALR(2014)-AD-104.
Sections 11(Ga) and 30-Ad-interim bail by the High Court Division, Sessions Judge can not review the merit of the order of bail except misuse of the bail. When High Court Division assessed the merit of the case in granting bail, the Sessions Judge is not competent to re-assess the merit of the case. He can, of course, examine the question of misuse of the privilege of the bail by the accused. Hossain Md. Rajib Vs.The State, 4 ALR (2014)-HCD-70.
Section 11(Ka)-Cold blooded murder
The High Court Division considered the evidence of the prosecution witnesses and found that they uniformly deposed that the convict accused had demanded dowry and subsequently due to non-fulfilment of the said demand, the deceased while in the custody of her husband was done to death by her husband convict accused. Considering the facts and circumstances of the case, the High Court held that the trial court has rightly awarded the sentence of death. Such a person who caused death of his wife out of sheer greed has no right to live in this world. He has committed cold-blooded murder of a simple village girl just because her parents and she had failed to meet his illegal demands. In such a situation, the High Court Division is of the view that the Tribunal has committed no illegality in passing the sentence of death.
The State Vs. Oliar Rahman, 4 ALR (2014)-HCD-16.
Sections 11(kha) and 30-The learned Judge of the Tribunal without any specific observation rejected the narajee petition which is not passed in accordance with law. Therefore, High Court held that the impugned order suffers from legal infirmities and directed to make further enquiry into the allegations made in the naraji petition filed by the informat by the competent authority in accordance with law.
Md. Phul Miah Vs. Abdul Ali, 4 ALR (2014)-HCD-139.
S.9(1)/13-The victim PW 1 had regular sexual intercourse with the appellant at her will and it is not a case of rape as defined in section 9(1) of the Nari-O-Shishu Nirjatan Ain,2000 and section 375 of the Penal Code. In view of the above assertion of the prosecution witnesses, we have no hesitation to hold that PW 1 was a willing partner in regular intercourse with the convict-appellant. There is no iota of evidence that the appellant obtained the consent of PW 1 under threat or by practicing fraud upon her before such regular intercourse. It is evident from the evidence and materials on record that the victim is aged more than 17 years at the time of occurrence and as such rape does not construe as define in section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and section 375 of the Penal Code.The victim being aged more than 17 years has consented with regular intercourse with the appellant. It was also the prosecution case that the victim Naima Akter Tuhin PW 1, blessed a child and she claimed that it is the result of rape on her person committed by convict Nazmul Islam. To ascertain the said fact no DNA test was held and PW 2, cousin of the victim, PW 4, PW 6 and PW 11 in their respective cross-examination stated that they did not know whether convict Nazmul Islam alias Nazu is the father of the alleged child, blessed by the victim (para 27). In view of the above discussion we are of the view that the victim PW 1 had regular sexual intercourse with the appellant at her will and it is not a case of rape as defined in section 9(1) of the Nari-O-Shishu Nirjatan Ain, 2000 and section 375 of the Penal Code (Para28). In the case of Suhel Rana Vs.State, reported in 57 DLR 591, a Division Bench of the High Court Division held that;“An offence of rape is not a continuing offence. When the first occurrence of sexual intercourse was not one of rape, his subsequent acts of intercourse with her without resistance could not treated as rape” (para 29). Thus in the instant case the conviction against the appellant under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain is not sustainable in law and is liable to be set aside (para 30). Since the raped has not committed, then the appellant cannot also be liable under section 13 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (para 31). In the above mentioned case it has also held that- “The birth of a child was the result of an immoral act for which the victim was equally responsible. Ir was not any result of rape within the meaning of section 9(1) of the Ain, 2000, (para 32). For the sake of argument, if we hold that the birth of the alleged child is the outcome of the immoral act of the PW 1 and convict Nazmul Islam, no doubt it is a social crime and normally and ethically we cannot appreciate or including such kind of immoral act. But, it is the principle of Criminal jurisprudence that an accused should be dealt in accordance with law and before awarding any punishment a Judge should have considered the legal evidence and proposition of law and he will not act as a social activist,rather he should have guided by law giving up emotion. Further, a Judge is required to dispense justice in accordance with law and not according to his moral conviction. Nazmul Islam alias Nazu Vs. State, 63 DLR-460.
Section-17-If the order rejecting a narajee petition passed without any specific observation then the same suffers from legal infirmities and as such further inquiry into the allegation is indispensable. Md. Phul Miah v. Abdul Ali & 8 Ors.35 BLD(2015)-HCD-276.
Section 17-Appellate Division helds that before proceeding with a case of false complaint or information against the informant or complainant, it would be prudent for the Court or Tribunal concerned to examine the materials on record to assess the prima facie nature of the allegation. It would be a futile exercise to proceed against the complainant/informant of a case charging him with having lodged a false case if the allegation of a false case having been brought by the accused is ultimately not likely to be substantiated in Court. AK. Azad Vs. Md. Mostafizur Rahman (Criminal) 6 ALR (2015)-AD-44 (3) S.17(2)-Sub-section (2) of Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 authorises the Tribunal to take cognizance against of the offence of making a false complaint before it only on a written complaint by the aggrieved party and in such case procedures laid down in sections 200-203 are required to be complied with. In the absence of a written complaint before the Tribunal it has no power to allow the investigating officer to initiate a legal proceeding against the informant for making false allegations against the accused. Harabilash Mitra Vs. Sanjoy Biswas (Criminal), 2 ALR (2013)-HCD-154.
S. 17-From the plain reading of sub-section (2) of section 17 it appears that Tribunal can take cognizance only upon a written complaint. Section 200-203 of the Code of Criminal Procedure laid down the provisions how a complaint has to be made and proceeded with it.The Tribunal in passing the impugned order giving approval to the investigating officer to initiate the proceeding against the informant for making false allegation having no written complaint before it by the competent person has acted illegally and beyond the scope of Section 17 of the Nari-O-
Shishu Nirjatan Daman Ain,2000.
Harabilash Mitra Vs. Sanjoy Biswas and another, 2 LNJ (2013)-HCD-97.
S.17(1)-The word as used in the first portion of the sentence of sub-section (1) means the person namely the informant or complainant and subsequent words means the person against whom allegation had been made to cause his injury which found to be false after proper investigation. The aggrieved person is the only competent person to file a written complaint before the Tribunal.
Harabilash Mitra Vs. Sanjoy Biswas, 64 DLR (2012)-HCD-343.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 17(2) - Tribunal sending the complaint to the police station for investigation without examining the complainant - nothing wrong is there.
The tribunal sent the complaint to the police station for investigation without examining the complainant under section 200 Cr.P.C. The High Court Division held there was nothing wrong and discharged the rule which the apex court found perfectly justified. Afroza Jesmin Vs. the State 12 MLR (2007) (AD) 303.
Ss. 17(1) & 26-The Nari-O-Shishu Nirjatan Daman Ain does not empower the Tribunal to take cognizance against any person who has filed a false case or a complaint or got such a case or complaint filed by any other person, in the absence of any written complaint made by any person and the Tribunal has no authority to direct the Magistrate or any other person to file any such complaint to enable it to take such cognizance.
Nurul Huq (Md) Vs. State, 55 DLR-588.
S. 17(1)-In the instant case the Tribunal without examining the complainant on oath rejected the complaint petition and thereby failed to determine as to whether there is a prima facie case against the accused persons or not and without examining the complainant under section 200, CrPC the petition of complaint cannot be rejected in limine. Hence, the rejection of the petition of complaint of the present accused-petitioners dated 31-10-2010 is illegal. The direction given by the Tribunal to initiate the proceeding against the present petitioners under section 17(1) of Nari-O-Shishu Nirjatan Daman Ain, 2000 is also illegal as the Tribunal cannot give such direction. The impugned order is quashed and the Tribunal is directed to proceed with the Nari-O-Shishu Nirjatan Case No.523 of 2001 arising out of Kamar Kahand PS case No. 3 dated 16-01-2001 corresponding to GR Case No. 351 (Ga)/01 Zone Gha, Sirajganj in accordance with law.
Abdul Majid Fakir Vs. State, 11 BLC-HCD-463.
Ss.18 and 27-The Tribunal had the jurisdiction to take cognizance refusing to accept the FRT. It was not required to examine any witness under the law to determine the truth or falsity of the allegation. Abul Kashem Khan Vs.State,56 DLR-435.
Nari-O-Shishu Nirjatan Daman Ain, 2000-S. 17(2)-
Tribunal sending the complaint to the police station for investigation without examining the complainant-Nothing wrong is there-
The Tribunal sent the complaint to the police station for investigation without examining the complainant under section 200 Cr.P.C the High Court Division held there was nothing wrong and discharged the rule which the apex court found perfectly justified. Afroza Jesmin Vs. The State 12 MLR (2007)-AD-303.
S. 19 and 25-Application filed by the informant praying for considering the bail of the accused is of no consequence in law in granting or refusing the prayer for bail.
Shahid Malongi (Md) and another Vs. State, 56 DLR-279.
S. 19-Whether this case under the clutches of Nari-O-Shishu Nirjatan Daman Ain and if does not come under the purview of Nari-O-Shishu Nirjatan Daman Ain, the very initiation of the case under the said Ain and submission of charge sheet under the provisions of Nari-O-Shishu Nirjatan Daman Ain is illegal. Similarly the trial conducted by the Nari-O-Shishu Nirjatan Tribunal is without Jurisdiction.
The fact of the informants case as it appears from the F.I.R. and the evidence produced by the prosecution is simple that on the fateful night, the condemned prisoner came to his father in-law's house and took away the deceased with him after taking dinner and the dead body of the deceased was detected in the brinjal orchard situated nearby the house of one Ayub Ali in the next morning. Although there is allegation that there was uproar over payment of dowry, which was agreed to be paid at the time of Solemnizing Marriage, but the prosecution hopelessly failed to prove aforesaid fact. No doubt that it is stated by the inmates of the house that there was a dispute over the demand of dowry and payment of dowry and the victim was taken away by her husband on the fateful night. These three things have been stated by the inmates of the house and relations of the deceased like a parrot. But the circumstance is that it appears from the charge sheet that the house of the father of the deceased and the house of her husband are situated side by side (Under lining done by me). It may be mentioned here that the charge sheet is not admissible in the evidence, but court may have impression from the charge sheet as it is the part of the record. We are obliged to note our concern to the mode of dispensation of justice system at the present position. The over night establishment of Nari-O-Shishu Nirjatan Daman Tribunal all over country and empowering the Judges who did not have any practical experience in holding trial involving capital sentence and the vesting of power of dealing with those type of cases had make them with imbalance and as a result we observe that number of conviction and imposing of death sentence has been increased and created an alarming position in our country. It is very much unprecedented which we have observed in long practice life in criminal side that now a days number of imposition of death sentence has been increased because those type of cases mainly the Nari-O-Shishu cases have been increased and it is being investigated by incompetent police officers and tried by judges having loss experience and the law itself is rampantly misued, which has been admitted even by the law makers publicly in many ocecsions. In such circumstances the courts must be more careful in dealing with the cases under Nari-O-Shishu Nirjatan Daman Ain. We are obliged to observe that Judges must be cautious in passing the judgment and order of conviction and sentence and they must remember that justice should not only be done but also appears to have been done and we once again reiterate that Judges must avoid the moral conviction,because the Judges of the lower courts are duty bound and we are oath bound for dispensation of justice in accordance with law-Relied on 26 BCR (AD)-240, the trial under Nari-O-Shishu Nirjatan Ain is illegal.
The State Vs. Md.Akinur Rahman@Akibul, 19 BLT (2011)-HCD-406.
Section-19 read with Code of Criminal Procedure, 1898 Section 497
The Court has been given a positive guideline to consider the prayer for bail where guiding principle remains in section 497 of the Code of Criminal Procedure. Dr. Debesh Chandra Nandi Vs. The State 12 BLT (HCD)-140
Section -19 read with Section -25
Though the tribunal and the High Court division on appeal is empowered to grant bail under the general provision of the Code the power is limited and such power should be exercised subject to specific condition] and restriction mentioned in section 19. This restricted power of bail prevails notwithstanding the general provision of section 25 of the Ain. No expressed] provision is made for granting bail to another person accused of any offence punishable under this Ain only because bail has not been opposed by the informant or the informant party consents to bail. Md. Shahid Malongi & Anr. Vs The State 13 BLT (HCD-302
S. 19(2)(3)-It is true that Nari-O-Shishu Nirjatan Daman Ain, 2000 is a special law and section 19(2)(3)thereof relates to the power of grmating bail by the Nari-O-Shishu Nirjatan Daman Tribunal alone but such power of granting bail by the Nari-O-Shishu Nirjatan Daman Tribunal alone but such power can only be exercised when the Investigating Officer submits police report in respect of any offence under the said Ain,2000 and the Tribunal takes cognizance under section 19(1) read with section 27 of the Ain, 2000. Prior to taking of cognizance by the Tribunal, the FIR case is treated as GR case for the simple reason that during investigation,it cannot be identified as Nari-O-Shishu case with certainty. If the GR case is ultimately found to be one under any of the provisions of the Penal Code or any other law not triable by the Tribunal,the disposal of bail application of the accused by the Nari-O-Shishu Nirjatan Daman Tribunal becomes without jurisdiction. Fajlur Rahman & Ors, Vs. State, 17 BLT-HCD-190.
S. 19-To grant bail to an accused in non-bailable case is a discretion of the Court which should be exercised with due care and caution. The allegation against the accused appellant is that he alongwith other accused abducted victim Liza, a 14 year old girl against her will. Police after investigation submitted charge sheet. However the matter was subsequently compromised and the victim sworn in an affidavit to that effect. The learned Judges of the High Court Division held to grant bail to an accused in a non-bailable case is the discretion of the Court which should be exercised judiciously having regard to the facts and circumstances of each case. In the instant case since the dispute has been compromised between the parties, the learned Judges with a view to securing social peace and amity particularly among the parties, granted bail to the accused-appellant. Md. Tota Howlader Vs. State, 16 MLR-HCD-335.
Ss. 19 & 25-Restrictions on granting bail to accused-Powers of the Tribunal or the Sessions Judge or the High Court Division are restricted under section 19 of the Ain and bail to the accused cannot be granted except on the grounds enumerated thereunder. Shahid Malongi and another Vs. The State, 9 MLR-HCD-173.
Sections 19(2), (3) and (4)-The Tribunal is empowered to exercise its jurisdiction as the Court of original jurisdiction until the case is ready for trial and then as the Trial Court. The Officer-in-Charge of a police Station any other Police Officer making the arrest of an accused, the Investigating Officer or any other Officer empowered to investigate into the offences under the Ain is required by the Ain to forward the person arrested without any warrant or in execution of any warrant, or to send the information relating to the commission or suspicion of the commission of any offence under the Ain or to submit the investigation report, whatever it may be, through the G.R.O. directly to the concerned Tribunal and not to any other Court. Since the Tribunal has been bestowed upon the jurisdiction of the Court of original jurisdiction under the Ain, it is also empowered to deal with bail even before the case is ready for trial inasmuch as Section 19(2),(3) and (4) exclusively empower the Tribunal to deal with the bail under the Ain, which does not differentiate the bail as to the bail during the investigation into or the bail during the trial of the case. Md.Shahjahan Vs. The State, 4 ALR (2014)-HCD-172.
S. 20–Held: We find that the present age of the victim-appellant is above 18(eighteen)
years and that there is no cogent reason to keep her in judicial Custody any more against her will.
Sumana Afroza Sumi Vs. The State & Anr, 16 BLT-HCD-291.
যেহেতু নির্ধারিত সময়সীমার মধ্যে বিচার সম্পন্ন করিবার ব্যর্থতার ক্ষেত্রে উহার ফলাফল সম্পর্কে কিছু উলে-খ
নেই সেইহেতু বিচারকার্য সম্পর্কে সময়সীমার বিধান নির্দেশনামূলক বাধ্যতামূলক নহে।
হাবিবুর রহমান জাকির এবং অন্যান্য বনাম রাষ্ট্র-৪৯ ডি.এল.আর-৩৬৭.
নির্ধারিত সময়সীমার মধ্যে বিচার নিস্পত্তি করিতে না পারিলে ফৌজদারী কার্যবিধির ৩৩৯ সি ধারার বিধান অনুযায়ী
অভিযুক্তকে ট্রাইব্যুনাল জামিনে মুক্তি দিতে পারিবে।
সােহেল বনাম রাষ্ট্র-৫ বিসি.আর-৬৫৮।
অভিযুক্ত ষােল বৎসর বয়সের কম বয়সী হইলে ১৯৭৪ সনের শিশু আইনের অধীনে তাহার বিচার করিতে হইবে।
শামীম (মােঃ) বনাম রাষ্ট্র-৫ এম.এল.আর-এইচসি-
ষােল বৎসরের কম বয়সী অপরাধীর বিচার ১৯৭৪ সনের শিশু আইন-এ অনুষ্ঠিত হইবে। অন্য কোন আদালতে
তাহার বিচার করার এখতিয়ার নেই হেতু উক্তরূপ বিচার অনুষ্ঠান এবং উহাতে প্রদত্ত দণ্ডাদেশ বেআইনি এবং অঢ়ল হইবে ।
এই ক্ষেত্রে অভিযুক্তের বয়স নির্ধারণের দায়িত্ব আদালতের উপর বর্তায়।
মনির হােসেন (মােঃ) বনাম রাষ্ট্র-৬ এম.এল.আর (২০০১) এইচসি-২৭৫।
ফৌজদারী কার্যবিধির ৩৪২ ধারার অধীন অভিযুক্তকে পরীক্ষার ক্ষেত্রে এই ধারার বিধান সমভাবে প্রযােজ্য। ৩৪২
ধারায় অভিযুক্তকে পরীক্ষা না করা হইলে বিচারকার্য ত্রুটিযুক্ত এবং অবৈধ হইবে।
৩০ ডি.এল.আর-৪২১।
Sections 20(3) and 31Ka(3)- Section 31Ka(3) of the Act, 2000 incorporates that on consideration of such reports the appropriate authority (যথাযথ কর্তৃপক্ষ) shall take action against the responsible person(s) who failed to conclude the trial within the stipulated period. Although, in the Act, 2000, the appropriate authority (যথাযথ কর্তৃপক্ষ) has not been defined, but from legal parlance, we are led to hold that it is the concerned authorities of the persons, who are submitting the reports i.e the Supreme Court, Law and Justice Division, Ministry of Law, Justice and Parliamentary Affairs and the Ministry of Home Affairs. Milad Hossain @ Milad Uddin (Md) vs State, 69 DLR 345
S.21- Trial in absentia.
Under a special law, its trial and its all procedures should be continuing and concluded under the provisions of the special law. Following the requirements of section 21 of the Ain,2000 is sufficient fro trial in absentia.
Md. Mohor Ali Vs. The State, 3 ALR (2014)-HCD-347.
Nari-O-Shishu Nirjatan Daman Ain, 2000 (VIII of 2000)
Section 22 /Gurdian and Wards Act, 1890
Section 25 read with Majority Act, 1875
The father is the well-wisher of his children and according to the Majority Act, 1875 one
becomes major on attaining the age of 18 years. According to law father is the legal guardian of
his children below 18 years of age and he is legally: his her custody. Whether the victim is a
minor or major has to be determined by the Majority Act, 1875 and the question of custody must
be determined in the light of the Majority Act, 1875 read with Guardians and Wards Act, 1890
coupled with the question of her wellbeing. [আইন অনুযায়ী আঠারাে বছরের নীচে শিশুর আইনগত অভিভাবক
হচ্ছে বাবা এবং তিনি আইনগত তার হেফাজতে রাখার অধিকারী শিশুর হেফাজত নির্ধারণে শিশুর মাঙ্গলিক বিষয়ে প্রাধান্য
দিতে হইবে।
Sanjit Baidya Vs. The State (Criminal) 6 ALR (2015)(2)-HCD-211
ম্যাজিস্ট্রেট কর্তৃক ভিকটিম বা সাক্ষীর জবানবন্দি নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ধারা ২২ এর
বিধানানুযায়ী লিপিবদ্ধ করিতে হইবে। এইরূপ ক্ষেত্রে ফৌজদারী কার্যবিধির ১৬৪ ধারা মােতাবেক লিপিবদ্ধকৃত জবানবন্দি
নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ধারা ২২ এর অধীন রেকর্ডকৃত বলিয়া গণ্য হইবে।
ওয়াছিম মিয়া (মােঃ) এবং অপর একজন বনাম রাষ্ট্র-৯ এম.এল.আর (২০০৪)-এইচসি-১৬২।
Section 22 read with Code of Criminal Procedure, 1898 Section 164
Section 22 of The Ain of 2000 is almost akin to section 164 of The Code of Criminal Procedure (Briefly The Code). Distinction which is marshalled is that in section 164 of The Code provision of recording confession along with statement has been supplied and in section 22 of The Ain of 2000 law of recording a confession had not been contributed. Abu Taher Vs The State 14 BLT (HCD) 68
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 22 - Statement recorded u/s 22 by the Magistrate 1st class is admissible in evidence.
Code of Criminal Procedure, 1898
Section 164 - Provides for recording statement of witness as well as confessional statement of accused
Section 154 - First Information Report (FIR) Evidentiary value
FIR has its importance as because it gives the account of the occurrence first in point of time and it lays the foundation of the prosecution case. Though not a substantive evidence its importance otherwise cannot be altogether ignored even if its author shifts his position being influenced by the accused. Abu Taher Vs. The State 11 MLR (2006) (HC) 16.
S. 22 read with Code of Criminal Procedure, 1898; Section 164-Section 22 of the Ain
2000 is almost akin to section 164 of the Code of Criminal Procedure (Briefly The Code).
Distinction which is marshaled is that in section 164 of the Code provision of recording
confession along with statement has been supplied and in section 22 of the Ain of 2000 law of
recording a confession had not been contributed.
Abu Taher Vs. The State, 14 BLT-HCD-68.
Nari-O-Shishu Nirjatan Daman Ain, 2000 S. 22, Cr.P.C-S.164,364-Section 164 of the Code makes provision for recording statement of witnesses or of an accused. Confession clearly refers to the statement of an accused person. Section 22 of Nari-O-Shishu Nirjatan Daman Ain 2000 makes provision for putting down statement of a person by a Magistrate, who is aware of the incident or himself witnessed commission of the offence.Section 22 of the Ain is almost akin to section 164 of the Code. Md. Wasim Mia and another Vs. The State, 23 BLD (2003)-HCD-621.
Section 22-The statements of the victim made before the Magistrate under section 22 of the Ain, 2000 cannot be a substantive evidence unless the maker of the statements prove it in Court or Tribunal on oath. Horon alias Mohin Uddin alias Main Uddin vs State, 70 DLR 524
S. 22 Statement recorded under section 22 by the Magistrate Ist class is admissible in evidence-Cr.P.C,1898; S. 164-Provides for recording statement of witness as well as confessional statement of accused-S. 154-First Information Report (FIR)-Evidentiary value of FIR has its importance as because it gives the account of the occurrence first in point of time and it lays the foundation of the prosecution case. Though not a substantive evidence its importance otherwise cannot be altogether ignored even if its author shifts his position being influenced by the accused. Abu Taher Vs. The State, 11 MLR-HCD-16. See 10 BLC-32.
S. 22-The learned Judge of the Tribunal committed illegality in discharging the accused from the case without taking into consideration of the statement given by the victim under section 22 of Nari-O-Shishu Nirjatan Ain, 2000 when the prosecution materials disclose prima facie allegation of abduction and rape against the accused of the case. The impugned order of discharging the accused from the case was quashed. Anwara Begum Vs. State, 16 BLC (2011)-HCD-748. See 19 BLT (2011)-HCD-401.
Ss. 22, 28 and 31-In the instant case it appears that the date of birth of the victim was 2-1-1993 as per Birth Certificate and Registration Card of the Board and that the victim was 15 years 8 months on the date of her abduction on 3-9-2008 meaning thereby the victim was a minor.The learned Magistrate considering the statement of the victim under section 22 of the Ain of 2000 sent her to the safe custody of Nari-O-Shishu Kishori Nirapad Hefazat Kendra,Farhadabad, Chittagong.The learned Judge of the Tribunal has rightly and legally passed the impugned order giving custody of the minor victim to her father, the informant which does not call for any interference by this Court. But the victim is unwilling to go in the custody of her parents. In such circumstances the victim appellant Suparna Rani Pal alias Jannatul Ferdous shall continue to remain in the safe custody of Mohila-O-Shishu Kishori Nirapad Hefazat Kendra,Farhadabad, Chittagong till her age is decided at the trial. Suparna Rani Pal Vs. State, 15 BLC (2010)-HCD-169. Same 19 BLT (2011)-HCD-470.
Nari-o-Shishu Nirjatan Daman Ain
Section 25-The word 'inquiry' appearing in section 27 (IKa) (Ka), in view of its special wordings, seems to differ, if at all, in degree from 'inquiry' within the scheme of the Code. An inquiry within the meaning of the Code, especially when follows a naraji petition, is generally an indoor activity of quasi judicial nature conducted by a Magistrate or Court that includes recording of oral evidence adduced by a handful of witnesses, in most cases selected by the informant, in order to examine whether there is prima facie materials to justify cognizance which has nothing to do with visiting place of occurrence, search, seizure, detection and tracking down accused, arrest, interrogation, collection of evidence on ground-level including expert opinion etc. as is done during investigation.
Anjuara Khanam@Anju vs State (Criminal)(Full Bench);
68 DLR(2016)-HCD-466.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section-25 & 28-Informant as appellant challenging the impugned order,wherein accused are discharged from the charge in allegation under section 7/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000
Held: It is pertinent to point out that accused Shahjahan also made confession recorded under Section 164 of the Code of Criminal Procedure implicating himself and the other accused in respect of abducting the victim Sarwar Hossain. Moreso the victim himself made statement recorded under Section 22 of the Ain 2000 wherein he stated that all the accused by deceitful means induced him to go from his home at Krishnapur to Parbatipur and all the accused compelled him to work in the hotel as a boy for about twelve days. All the witnesses in their staements recorded under Section 161 of the Code also narrated the manner of abduction by the accused-the proposition of law is now well settled that on the basis of the defence plea or materials the criminal proceedings should not be stifled before trial when there is a prima-facie case for going to the trial-Appeal is allowed.
Md. Azizar Rahman Munshi Vs. The State & Ors, 23 BLT (2015)-HCD-198
S. 25 and 27(1ka)(1ga)-Under section 25 of the Ain the provisions of the Code of Criminal Procedure shall be applicable subject to the provisions of the Nari-O-Shishu Nirjatan Daman Ain, 2000 the Tribunal may make cognizance of an offence if it is just and proper and in the interest of justice though there is no allegation of the commission of an offence or a recommendation for taking action against the accused persons in the report submitted by the police under sub-section (1) of section 27 and also by the Magistrate or any authorized person under sub-section (1ka) of section 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. From the aforesaid provisions it is abundantly clear that the Nari-O-Shishu Nirjatan Daman Tribunal is empowered to take cognizance of an offence against the accused-persons where the police submitted final report recommending discharge of the accused persons.
Jamshed Akbar Latu@Jamshad Ali Vs. State, 12 BLC (2007)-HCD-351.
Section 25-The word 'inquiry' appearing in section 27(1Ka)(Ka), in view of its special wordings, seems to differ, if at all, in degree from 'inquiry' within the scheme of the Code. An inquiry within the meaning of the Code, especially when follows a naraji petition, is generally an indoor activity of quasi judicial nature conducted by a Magistrate or Court that includes recording of oral evidence adduced by a handful of witnesses, in most cases selected by the informant, in order to examine whether there is prima facie materials to justify cognizance which has nothing to do with visiting place of occurrence, search, seizure, detection and tracking down accused, arrest, interrogation, collection of evidence on ground-level including expert opinion etc, as is done during investigation. Anjuara Khanam @ Anju vs State (Full Bench), 68 DLR 466
S. 25,19-Section 5 of the Ain provides that in the matter of lodging complaint of any offence, investigation, trial and disposal, the provisions of the Code of Criminal Procedure shall apply. Though the tribunal and the High Court Division, on appeal if empowered to grant bail under the general provision of the Code, such power should be exercised subject to specific condition mentioned in section 19. Md. Shahid Malonji & anr. Vs. The State, 24 BLD(2004)-HCD-236.
Section 25 of the Nari-O-Shishu Nirjatan Daman Ain, 2000:
Under the Ain, the tribunal will enjoy all powers which a Court of Sessions enjoys save and except the ones specifically denied:
The Nari-O-Shishu Nirjatan Daman Tribunal is also a Court of Sessions of original jurisdiction as per provision of section 25 of the Ain since it has been specifically said in the Ain that the Tribunal shall be deemed to be a Court of Sessions. The words “UªvBey¨bvj GKwU `vqiv Av`vjZ ewjqv MY¨ nB‡e ” in legislation clearly expressed the intention of the Legislature that the Tribunal is to be act as Court of Sessions which is deeming provisions and are to strictly limited to the statutory purpose they are created for. It is our duty to ascertain the purpose for which such fiction is created. A deeming provision
must be construed contextually and in relation to the legislative purpose. Section 25 of the Ain must lead to the inescapable conclusion that the statutory fiction laid down in it must be resorted to and full effect must be given to the language employed. Such deeming provision has been introduced to mean that the tribunal shall be deemed to be the Court of Sessions of original jurisdiction. That is, the Tribunal is a Court of original criminal jurisdiction and to make it functionally oriented some powers were conferred by the Ain setting it up and except those specifically conferred and specifically denied it
has to function as a Court of original criminal jurisdiction not being hide bound by the terminological status or description of a Court of Sessions. Under the Ain, it will enjoy all powers which a Court of Sessions enjoys save and except the ones specifically denied. (Para 12)
In the instant case charge was framed for the commission of offence that the respondent had killed his wife demanding dowry, but it is proved that he had killed his wife but demand of dowry has not been proved. Since the Tribunal has authority to try scheduled and non-scheduled offence together and it is authorized to act as Court of Sessions, we do not find any jurisdictional error if the accused is convicted and sentenced for the charge of killing wife. Such analogy is also applicable for the Appellate Court as well. (Para 15) 18 SCOB [2023] AD 1
Section
25 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and 227 of the Code of
Criminal Procedure, 1898: The laws of procedure are devised for advancing
justice and not impeding the same. The main object and purpose of enacting
procedural laws is to see that justice is done to the parties. The Ain contains
no provision relating to framing of charge. Hence, in view of Section 25(1),
the provisions of the Code which relate to framing of charge are applicable to
the Ain. Section 227 of the Code clearly mentions that Any Court may alter or
add to any charge at any time before judgment is pronounced. In view of this
section it becomes very clear that the High Court Division as the appellate
authority in the present case has the power to alter the charge framed by the
Tribunal and convict the accused on the same. (Para 18)
S. 26: The Nari-O-Shishu Nirjatan Daman Ain,2000 does not empower the tribunal created under section 26 to take cognizance against any person who has filled a false case, in the absence of any written complaint made by any person under sub-section (2) of the said section and the Tribunal has no authority to direct the Magistrate or any other person to file any such complaint to enable it to take such cognizance.
Md. Nurul Huq Vs. The State, 23 BLD (2003)-HCD-300.
Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended,2003);
Section 27(1Kha)(Ka)
Whether the complaint petition is sustainable in law
Held; upon scrutiny, we find the police report expressly states that a prima facie case has been made out upon inquiry. In fact the police report also stated that the accused respondent even tried to put undue pressure upon the appellant to withdraw the case.In the 2nd last para of the polic "Therefore, under the facts and circumstances of the case we are of the considered view that when the complainant went to the police station to file a G.D. being No.840 dated 23.07.2015 he also intended to file a complaint but the concerned Thana as is evident from the complaint petition clearly advised the appellant to proceed to the trial court with the complaint. But the court below, without ever mulling over the facts and rather upon misinterpretation of facts and error of law wrongfully dismissed the complaint without affording him due process of law resulting in serious injustice. Md. Athar Bepari Vs. Rajib Sarder & Ors 25 BLT (2017)-HCD-96
Section 27(1)(1Ka)(IKha)-A legal obligation created for the Tribunal to take recourse to 'inquiry' for collection of evidence without leaving option for investigation to put in place, in case it is needed.This means the Tribunal, which was supposed to be fortified by power more robust than usual, is relegated to a position weaker than that of a Magistrate who,in the circumstances, can direct the police to treat the complaint as first information report and investigate. Anjuara Khanam@Anju vs State, (Full Bench); 68 DLR(2016)-HCD-466.
Nari-O-Shishu Nirjatan Daman Ain,2000
Section-27
Code of Criminal Procedure,1898
Section-200
Naraji petition, scope of, within the scheme of Section 27 of the Nari-o-Shishu Nirjatan Damon Ain,2000;-Whether examination u/s 200 of the Code of Criminal Procedure of complainant filing naraji in a Nari-O-Shishu Nirjatan case is mandatory; Ambit of power of the Tribunal u/s 27 of the Nari-O-Shishu Nirjatan Damon Ain, 2000; What is "investigation', difference between investigation and inquiry; Interpretation of statute. Mst.Anjuara Khanam Anju Vs. The State & Anr. 36 BLD (2016)-HCD-318
Section- 27(3)
Unless any of the offence becomes punishable under Nari-O-Shishu Nirjatan Daman Ai 2000 the learned Judge of the Tribunal has no jurisdiction to take cognizance of another offence punishable under general law. Shamsunnahar Vs. State 14 BLT (HCD) 184
Nari-O Nirjatan Daman Ain, 2000 (VIII of 2000)
Section 27 (1- ka) read with Code of Criminal Procedure,1898 (V of 1898)
Sections 200 and 173-The tribunal has discretion to assume cognisance even though the report was in the negative. Section 27(1Ga) confers wide discretion upon the tribunal in that it can assume cognisance even if the Police Report, as contemplated by Section 173 Cr.P.C, exonerates the accused. This discretionary power is surely meant to prevent abuse or bias by investigators, which are not uncommon. As the records reveal, the police in the case in hand transmitted a negative report ie a Final Report, and hence, under Section 27(1 ga) read with section 27(1),the tribunal had discretion to assume cognisance even though the report was in the negative. Md. Mokbul Hossain Molla V's The State (Cri.) 6 ALR(2015)(2)-HCD-196
Section 27(1)(Ga) read with Code of Criminal Procedure, 1898 (V of 1898)
Section 265C-Before framing charge the petitioner came before the High Court by filing an application under section 561A CrPC for quashing the order of cognizance passed by the Nari-0-Shishu Nirjatan Daman Tribunal. The High Court Division held that the petitioner has scape and opportunity to agistate the matter by filing application u/s 265C of the CrPC before the tribunal and as such the application U/s 561A Cr.PC is not maintainable. Nepal@Nepal Chandra Saha Vs. The State, 5 ALR (2015)-HCD- 79.
Section 27-Tribunal without complying with the stipulated provision of law i.e.without sending the matter for inquiry and without getting inquiry report directly took cognizance merely on the basis of the petition of complaint, as such, the very initiation and continuation of the proceedings is an abuse of the process of the court. Abdul Hamid (Ujir) vs State (Criminal), 67 DLR (2015)-HCD-154.
S.27-Before taking cognizance, Nari-O-Shishu Nirjatan Daman Tribunal is not empowered by law to transmit the case record for trial to Druto Bicher Tribunal.Druto Bichar Tribunal is not empowered to take cognizance of the offence.
Shaheen Vs. State, 59 DLR-HCD-23.
S. 27(3)-If the offence under the Ain,2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed.
Sohel Rana Shippon (Md.) Vs. State 66 DLR (2014)-AD-160.
S.27(1)(Ga)-Even if, the report, there is neither any complaint for the commission of an offence nor recommendation for taking action respect of such offence, against the accused persons, the Tribunal misconstrued the provisions of section 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and thereby committed an error of law in passing the impugned order,rejecting the inquiry report submitted by the Magistrate, 1st Class and directing the Additional District Magistrate, Sylhet for holding 'local inquiry” for the 2nd time though the Magistrate,1* Class held the enquiry as per provision of section 27 and that the aforesaid Ain does not provide for such inquiry for the 2nd time.
M. Mominul Khan Vs. State, 58 DLR-HCD-253.
S. 27, 27(1ka) and (1kha)-Jurisdiction of the Tribunal and its power to take cognizance
Section 27(1)-The Tribunal shall not take cognizance of an offence except without a report by a Police officer not below the rank of sub-Inspector.
S.27 (1kha)-If on receipt of the enquiry report the Tribunal does not find a prima facie case for trial, he shall dismiss the complaint as unsubstantiated.
Babu Miah Vs. The State (Cri), 2 ALR (2013)-HCD-338.
S.27(1Ga)-the Tribunal has no power to take cognizance just on the basis of a naraji petition.
Babu Miah Vs. The State (Cri), 2 ALR (2013)-HCD-338.
S. 27(1ka) and (ka)-When a naraji petition is filed by the aggrieved person the tribunal after examination ought to have sent the matter for further inquiry as per section 27(1ka) and (Ka) of the Ain, because naraji petition is fresh complaint.
Babu Miah Vs. State, 18 BLC (2013)-HCD-598.
S. 27-It does not appear from the aforesaid provisions of section 27 of the Ain that after submission of police report recommending discharge of the accused there was any scope for the informant to submit any naraji petition against such FRT. It however, conferred jurisdiction upon the Tribunal to take cognizance of an offence under the said Ain by stating grounds, even though FRT was submitted in favour of the accused. In the instant case before us, it is found, before acceptance of the FRT by the Tribunal or before its taking any action on it, the petitioner submitted a naraji petition containing allegations against the police to the effect that FRT was submitted without examination of any witness, while his victim son was not till then recovered. The learned Tribunal, we have mentioned earlier, had the jurisdiction to take cognizance refusing to accept the FRT. He was not required to examine any witness under the law to determine the truth of the allegation. So, it was beyond the scope of law for the Tribunal to examine such witnesses and record a finding on their statements towards accepting or refusing to accept the FRT. It had also the option, for ends of justice, to direct further investigation in terms of section 18 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 without undertaking any judicial inquiry by itself. Abul Kashem Vs.State,56 DLR-435 Para-8.
S.27(1ka)(ka)-The expression “any person” in section 27(1ka)(ka),does not include any “police officer' but it includes any public officer or any private individual or any other responsible person of the society upon whom the Tribunal may have confidence to get the enquiry conducted in respect of the complaint lodged before the Tribunal and submit report within seven working days. Sirajul Islam Vs. State. 17 BLC (2012)-HCD-740.
S.27(1Ka)(Ka)-The intention of the legislature as reflected in section 27(1Ka) (Ka) is to empower the tribunal to direct “any Magistrate” or “any person” excluding any police officer to enquire and report within 7 working days. The expression “any person” in section 27 (1 Ka)(Ka), according to our view, does not include any “police officer” but it includes any public officer or any private individual or any other responsible person of the society upon whom the tribunal may have confidence to get the enquiry conducted in respect of the complaint lodged before the tribunal and submit report within seven working days. Sirajul Islam Vs. The State and others, 1 ALR (2012)-HCD-162.
S. 27 (3), 28-From a clear reading of Section 27(3) it is abundantly clear that if an offence under this Ain is connected with an offence under any other law in such a way that in the interest of justice it is necessary for both the offences to be tried together in the same case them the said offence shall be tried along with offence under this Ain in the same Tribunal in accordance with the provisions of the Ain. Md. Abdur RoufMoral Vs. The State, 28 BLD (2008)-HCD-357.
S. 27(3): Unless any of the offence comes punishable under Nari-O-Shishu Nirjatan Daman Ain 2000 the learned Judge of the Tribunal has no jurisdiction to take cognizance of any other offence punishable under general law. Shamsunnahar Vs. State, 14 BLT-HCD-184.
S. 27(3), 28-From a clear reading of Section 27(3) it is abundantly clear that if an offence under this Ain is connected with an offence under any other law in such a way that in the interest of justice it is necessary for both the offences to be tried together in the same case then the said offence shall be tried along with offence under this Ain in the same Tribunal in accordance with the provisions of the Ain. Md. Abdur RoufMoral V's. The State, 28 BLD (2008)-HCD-357.
S.27-Though it is well settled that a naraji petition is a fresh complaint, the Tribunal had no jurisdiction to take cognizance of the offence under section 11(Ga)/30 of the Ain against the accused-appellants and another accused on the basis of the naraji petition as before filing of such naraji petition, treated as fresh complaint, the police officer did not refuse to accept the complaint being requested. The police officer recorded the case and after investigation submitted police report under section 173 of the Code of Criminal Procedure.The Tribunal did not take cognizance of the offence on the basis of that police report nor directed further investigation on the basis of naraji petition. Thus the Tribunal on receipt of naraji petition acted without jurisdiction directing enquiry to be held by the Magistrate and on receipt of enquiry report taking cognizance of the offence against three accused persons on the basis of naraji petition and enquiry report. In view of the matter under section 27 of the Ain the Tribunal had no jurisdiction to take cognizance of the offence on the basis of the naraji petition.
Nakib AshrafAli & Anr Vs. The State & Anr, 17 BLT-HCD-370.
S. 27-As provided under sub-section (1C) of section 27 of Nari-O-Shishu Nirjatan Daman Ain,2000, the Tribunal may take cognizance of an offence if prosecution materials disclose prima facie case against the accused of the case. However, submission of final report does not create any vested right nor any legal right in favour of the accused of the case and the same does not, ipso facto, entitle the accused to his discharge from the case. The accused may be prosecuted if the prosecution material discloses prima-facie offence against him. The Tribunal is empowered to take cognizance of the offence on examining the prosecution materials on record.
Anwara Begum Vs.The State, 19 BLT-HCD-401.
Section 27-In the realm of almost unqualified power directed to achieving the object of law, naraji stands to lose its ordinary legal signification and is relegated merely to the status of a document supplying important information indicating flaws in the investigation or inquiry making the formalities in taking notice of it totally redundant. There is, no scope in the Ain, to ascribe the status of fresh complaint to naraji-petition. In the same vein, examination or non-examination of the informant/ complainant under section 200 for taking naraji-petition into consideration is of no consequence. Examination of complainant, thus, being unnecessary, non- examination under section 200 does not furnish any ground for quashing. Anjuara Khanam @ Anju vs State (Full Bench), 68 DLR 466
Section 27-Tribunal without complying with the stipulated provision of law i.e. without sending the matter for inquiry and without getting inquiry report directly took cognizance merely on the basis of the petition of complaint, as such, the very initiation and continuation of the proceedings is an abuse of the process of the court. Abdul Hamid (Ujir) vs State, 67 DLR 154
Section 27-The Ain being a social defense legislation (as the similar statutes are often so called) the Tribunal created under it is designed to effectively curb the growing crimes against women and children by ensuring flawless investigation or (where practicable) inquiry and speedy trial. No contextually defiant and dis- cordant phrases, expressions and termino- logies found place in the law, however clear in meaning, cannot be put to strict literal construction divorced from context, without betraying the cause of the legislation. It is precisely for the reason, sub-clauses (Ka) of both clauses (1Ka) and (1Kha) need be put to strained construction so as to be synchronized with the rest of the statute for that matter the purpose of the Ain Anjuara Khanam @ Anju vs State (Full Bench), 68 DLR 466
Section 27(1)(1Ka) (1Kha)-A legal obligation created for the Tribunal to take recourse to 'inquiry' for collection of evidence without leaving option for investigation to put in place, in case it is needed. This means the Tribunal, which was supposed to be fortified by power more robust than usual, is relegated to a position weaker than that of a Magistrate who, in the circumstances, can direct the police to treat the complaint as first information report and investigate. Anjuara Khanam @ Anju vs State (Full Bench), 68 DLR 466
Section 27(3) If the offences under the Ain, 2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed. Sohel Rana Shippon vs State, 66 DLR (AD) 160
Section 28-Bail-In granting bail the Court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts. are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint. State vs Arman, 67 DLR (AD) 181
Nari-o-Shishu Nirjatan Daman Ain, 2000 (V of 2000)
Section 28- Whether enlarged the convict on bail after he had suffered only seven months out of his sentence of 14 years imprisonment-
The Appellate Division held that from the impugned order it appears that while granting bail the High Court Division considered the evidence and materials on record as well as the facts and circumstances of the case and exercised its discretion to grant bail to the respondent. The Appellate Division also considered the evidence and materials on record. In the facts and circumstances at the case the Appellate Division consider that the exercise of discretion calls for any interference by this Division.
The State Vs.SM. Mizanur Rahman (Criminal) 5 ALR (2015)-AD-50.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 28- Appeal against acceptance of final report - Discussion of the I.0. with the Additional Deputy Commissioner is no evidence and as such proceeding cannot be dropped on the basis thereof.
When it appears that the Investigating officer being influenced submitted final report in spite of medical evidence and other materials on record justifying no reason to submit final report, the tribunal was also not justified in accepting the final report. The learned judges of the High Court Division having found sufficient materials on record, set-aside the order accepting final report and directed the tribunal to take cognizance against the respondent. Shilpi Akter Vs. Md. Bacchu Mia and others 11 MLR (2006) (HC) 118.
Section 28-Bail-In granting bail the Court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint.
State vs Arman (Criminal), 67 DLR (2015)-AD-181.
S. 28-The Tribunal concerned is directed to allow the victim Shilpi, the present appellant, to give evidence before the Tribunal as she appears to be a very witness of the case.
Shilphi Vs. State, 59 DLR-HCD-539.
S. 28-Mere mentioning of the words person aggrieved in an observation under paragraph-13 has no bearing or any manner of application in the issue either raised in MK Malaker's case or in the present case. The disagreement of the said Bench in MK Malake's case with the decision of Feroza Begum's case [40 DLR 161] was not in fact based on the ratio decidendi, or even obiter made, by the Appellate Division in Abdul Halim's case. In so far as such reliance on the Appellate Divison's ratio to disagree with the decision in Feroza Begum's Case is concerned, the decision in MK Malaker's case is per-incuriam. The decision in Feroza Begum's case, 40 DLR 161, is the correct proposition of law and the same is supported by the ratio emerged from the decision of the Appellate Division in Fazar Ali's case, 43 DLR (AD) 129. Shajeda Begum Vs. State, 19 BLC (2014)-HCD-294.
Section-28
Custody of child - the father of the victim is not a party to this case - whether this appeal maintainable
In the present case the appellant is not only the complainant, rather the impugned order also was passed on his prayer seeking custody of his daughter and this order has aggrieved this appellant only. It is well settled that an information can prefer an revision under section 439 of the Code of Criminal Procedure against a judgment of acquittal where the state does not prefer any appeal. The conferment of this very power on the informant has recognized the informant/ complainant as an aggrieved party, no doubt. So, my view is that by no stretch of imagination can the complainants or informants be excluded from the category of "?????????" or "aggrieved party" as stated in section 28 of Nari-O-Shishu Nirjatan Daman Ain, 2000 . Nannu Miah Vs The State & Ors 13 BLT (HCD) 245
S.28-Appeal for Bail-allegation under section 6(1)/7/10 of the Nari-O-Shishu Nirjatatan Daman Ain 2000 (as amended,2003) Gravity of the offence-We find that there is serious allegation against the appellant under section 6(1)/7/30 of the Nari-O-Shishu Nirjatan Ain and the learned Tribunal on proper and due consideration of the materials on record rightly took cognizance against the accused-appellant under section 6(1)/7/30 of the Nari-O-Shishu Nirjatan Daman Ain 2000 as amended 2003-the impugned judgment and Order passed in Nari-O-Shishu Nirjatan Daman Case is affirmed. Md. Rashel Ahkond Vs. The State & Anr (Criminal), 21 BLT (2013)-HCD-443.
S. 28-Appeal arising out of the Order wherein prayer for bail was rejected. Allegation 6(1)/7/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000-appellant have been languishing for about 2 years in the jail. We find that there is serious allegation against the appellant under section 6(1)/7/30 of the Nari-O-Shishu Nirjatan Daman Ain. In view of the gravity of the offence and the materials on record we have no hesitation to accept the contention as raised by the learned Deputy Attorney General and find force in the submissions of the learned Deputy Attorney General appearing for the State Respondent opposite party. On the other hand we find no substance in the submissions of the learned Advocate appearing on behalf of the appellant and deserves no consideration. Appeal dismissed. Md. Rashel Ahkond Vs. The State & Anr, 20 BLT (2012)-HCD-551.
S.28 Cr.PC Ss.1(2), 203-The Complainant without taking the recourse laid down in section 28 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 filed a fresh complaint being the instant case-Not permissible in the eye of law. The Nari-O-Shishu Nirjatan Daman Ain 2000 is undoubtedly a “Special law” A special Law means a law enacted to Special cases, in special circumstances in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. Thus Criminal Procedure Code is a general law, regulating the procedure for the trial of Criminal cases, generally, but if it lays down any bar in respect of special cases in special circumstances like those of Nari-O-Shishu Nirjatan Daman Ain, 2000, it will be special law contained within the general law. Mr.Ahmed Hossain and others Vs. Most Nasima Khatun and others, 9 LG (2012)-HCD-17.
S. 28-The complainant without taking the recourse laid down in section 28 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, filed a fresh complaint being the instant case-Not permissible in the eye of law. Ahmed Hossain Vs. Nasima Khatun, 13 BLC (2008)-HCD-328.
S. 28-Notwithstanding that a person may have a right to move before higher Court challenging legality of the order rejecting the prayer for releasing the victim girl to his custody, he could approach the High Court Division under section 491 of the Code of Criminal Procedure for a direction that his minor ward having been detained in judicial custody illegally or in an improper manner be made over to the custody of her natural guardian in the best interest of her welfare. Arun Karmaker Vs. State represented by the DC, Satkhira and another, 7 BLC-AD-61.
Section 28- Bail- It appears that while granting bail the High Court Division considered the evidence and materials on record as well as the facts and circumstances of the case and exercised its discretion to grant bail to the respondent. We have also considered the evidence and materials on record. In the facts and circumstances of the case we do not consider that the exercise of discretion calls for any interference by this Division. It appears that the respondent was enlarged on bail by order dated 30.11.2004 and there was no ad interim order passed by this Division. In the circumstances we are of the view that the respondent may remain on bail till disposal of the appeal, if it has not been already disposed of. The State VS S.M. Mizanur Rahman @Akash, [9 LM (AD) 588]
S. 28-Appeal against acceptance of final report-Discussion of the I.O. with the Additional Deputy Commissioner is no evidence and as such proceeding can not be dropped on the basis thereof-When it appears that the Investigating Officer being influenced submitted final report in spite of medical evidence and that materials on record justifying no reason to submit final report the tribunal was also not justified in accepting the final report. The learned Judges of the High Court Division having found sufficient materials on record set aside the order accepting final report and directed the tribunal to take cognizance against the respondent.
Shilpi Akter Vs. Md. Bacchu Mia and others, 11 MLR-HCD-118.
S. 28-Propriety of the impugned Order, rejecting the application for bail-condition in granting bail.
Allegation under Sections 11(ga)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2003 (Amended 2003). It is evident that the learned Judge exercised her jurisdiction in rejecting the application for bail as salishder of a village. In series of decision of the apex court it is held that imposing of condition in granting bail is not sustainable in the eye of law. The learned Judge in rejecting the prayer for bail in this case has forgotten her basic principle that she is bound to dispense justice in accordance with law and a Judge cannot be a Arbitrator while dispensing justice. Unfortunately in the present case the bail prayer was rejected on the ground that the appellant did not compromise the case. The Judges has no duty to compromise any dispute in between the litigant public. But in this case which has been done by the learned Judge of the Tribunal comes under the definition of “Salishder” not under the definition of a Judge and the same is beyond the scope of law.
Hossain Md. Rajib Vs. The State, 19 BLT (2011)-HCD-388.
S. 28-In absence of independent evidence other than confessional statements of two co-accused against the appellant is entitled to be released on bail when he has been in custody since one and a half year.
Subrata Majumder @ Liton Vs. State, 16 BLC (2011)-HCD-830.
S. 28-It is contended on behalf of the appellant that some of the charge-sheeted witnesses were let-off from examination at the instance of the informant which seriously prejudiced the appellant. The appellant has ample opportunity to adduce those witnesses in his defence evidence.
Shamsunnur Rahman Vs. State, 16 BLC (2011)-HCD-895.
S.28-Appeal preferred by the victim being aggrieved by the order giving her custody to her father, the informant and refusing to go her in the custody of her alleged mother-in-law. The victim is unwilling to go in the custody of her parents. In such circumstances, the victim appellant shall continue to remain in the safe custody till her age is decided at the trial. Suparna Rani Pal Vs. The State & Ors, 19 BLT-HCD-470.
S.28 read with Code of Criminal Procedure,1898, S.561A-
Could not prefer criminal Appeal in time because as economic hardship.
Maintainable-Though the order accepting final report and discharging the accused from the
case is an appelable order, the petitioner could not prefer criminal appeal before this Court in time
because of economic hardship. However, the petitioner taking help from Bangladesh Legal Aid
and Services Trust (BLAST) filed this application under section 561A of the Code of Criminal
Procedure and obtained this Rule. Rule is made absolute.
Anwara Begum Vs. The State, 19 BLT-HCD-401.
S. 30-The injury report issued by the Medical Officer and agreed and approved by the Medical Board, indicates several injuries on the body of the victim. The evidence thus produced is corroborative of the prosecution case of an attempt to rape the victim. Sections 22 and 23 of the Ain allow for the 164 statement and doctor are not witnesses in the case. In each of the two sections there is a proviso that conviction should not be based solely on such evidence. There is considerable support of the prosecution case by way of oral and documentary evidence, which is sufficient for the conviction of appellant. With regard to the complicity of appellant Akhi Begum, the evidence of PWs 1, 4 and 5 quite clearly does not implicate her in any way with the offence of the principal accused. Under Section 30 of the Ain, Akhi Begum could only be implicated if it could be shown by positive evidence that she had in some way instigated/encouraged the principal accused in committing the Act with which he is charged or in any way aided and abetted the actual offence of rape or attempt to rape. In the instant case none of the prosecution witnesses in any way indicate that the appellant Akhi Begum instigated or encouraged the principal accused to do the alleged Act or in any way assisted him during the commission of the offence.
Kabir Hossain Vs. The State, 26 BLD (2006)-HCD-381.
Ss. 5, 6 and 30-Penalty for trafficking women and children. The High Court after considering the submissions made by the learned Advocates of both the parties and perusing the petition under section 561A of the Code of Criminal Procedure and petition of appeal and the Jail Appeal and also the judgment and order, it is clear that the prosecution adduced as many as 19 witnesses including the victims namely Most. Salma, Most. Jesmin, Most, Parveen, Most. Fatema, Most. Romesa Khatun, Most. Fatema and Most. Shefali Khatun who deposed in the Court as P.Ws. and disclosed their agony after recovery when they were kept firstly in the house of Ahmed Ali then in the house of Mohammad Ali and thereafter in the house of Mohor Ali, and lastly in the house of the convict-Nazrul which is situated within 1 and 1.5 kilometers from the border between India and Bangladesh. From the above circumstances there is no doubt that these women collected and gathered by inducing to provide with a goods jobs. The prosecution adduced sufficient evidence to show that they were kept near border in order to traffic them to India in return of huge amount of money. Fortunately, the local people could realize the incidence and recovered the victim women from the area along with 4 convicts but some of the convicts could escape therefrom. In this regard it is clear that the offences under section 5,6 and section 30 of the Ain have been committed by the convicts.
Md. Mohor Ali Vs. The State, 3 ALR(2014)-HCD-347.
S. 31-Safe custody of the Victim Minor girl-One plain reading of section 31 discretionary authority of the Tribunal to pass an order to put any girl in safe custody outside jail in the custody of Government authority person or organization in course of trial of an offence under the Ain is intended to ensure safely, security and welfare of the girl, when Nari-O-Shishu Nirjatan Daman Tribunal by order dated 16.03.2006 directed for release minor girl Jannatun Noor Popy victim of an offence under the Ain and allowed custody of the minor to her mother no person or organization is authorized to question validity of the order under section 31 of the Ain.
Mostafa Kamal Vs. The State, 14 BLT-HCD-364.
(2)S.31-No person or organization can ask for safe custody of victim girl or child as of right unless such custody is assigned or given to it at the sole discretion of the Tribunal.
Mostafa Kamal Vs. The State, 14 BLT-HCD-364.
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 31- Custody of victim girl must be in her best interest. Opinion of the minor girl need not be taken into consideration while deciding her custody.
Mother as her guardian is entitled to the custody of her minor daughter without attaching any condition to the release order depending on the consent of the minor. Mostafa Kamal and others Vs. The State 11 MLR (2006) (HC) 267.
Attempt to abduct had not been made an offence under The Ain of 2000. Trisha was lot abducted. Examination of Judicial confessional statements signifies that convict-appellants had intention to abduct Trisha. Since attempt to abduct has not been shaped an offence in The Ain of 2000 the question of commandeering of Jurisdiction by Nari-O-Shishu Nirjatan Daman Tribunal did not and does not at all arise. The State Vs Mehdi Hasan @ Modern & Ors. 13 BLT (HCD)-151
S. 31-Custody of Victim girl must be in her best interest-Opinion of the minor girl need not be taken into consideration while deciding her custody-Mother as her guardian is entitled to the custody of her minor daughter without attaching any condition to the release order depending on the consent of the minor.
Mostafa Kamal Vs. The State,11 MLR-HCD-267.
See 58 DLR-453.
S.31-Custody of a victim girl.
Allegation under section 7/30 of the Nari-O-Shishu Nirjatn Daman Ain, 2000 against the accused-Informant, father of the victim girl filed an application for custody of his daughter (victim girl) victim also filed an application to go to the custody of her mother-in-law and not to her father-Held; we are of the view that the learned Judge of the Tribunal has rightly and legally passed the impugned order giving custody of the minor victim to her father, the informant which does not call for any interference by this Court. The decision reported in 54 DLR 298 cited by the learned Advocate for the victim appellant is not applicable in the facts and circumstances of the instant case.
Suparna Rani Pal Vs. The State & Ors, 19 BLT-HCD-470.
S.31-Custody of victim girl-Proviso to clause (b) of section 58 of the Children Act, 1974 has overriding effect-On the basis of a television report on the sad plight of a seven year old girl who was raped the learned Judges feeling perturbed issued suo moto rule and called for the examination from the Magistrate concerned who directed the victim to be kept in the custody of safe home when she was produced for recording her statement under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. The victim was not given to the custody of her parents though they were willing and capable to take due care and protection of her. The Magistrate took the plea as no application was filed so he ordered to send the victim to custody of safe home.
The learned Judges expressed serious concern about the lack of knowledge of the Magistrate about the law of custody of the victim and held that the filing of application is not the requirement of law. The Court must give the victim girl to the custody of her parent if they are willing and capable, no matter any application is filled or not.
The learned Judges made serious of recommendations urging the Government to make necessary amendment or re-enact the laws relating to children in conformity with the UN Convention on the Rights of the Child (CRC) and to take adequate measures for imparting training to all concerned including the Magistrate and Judges.
State Vs. The Secretary Ministry of Law Justice and Parliamentary
Affairs and Others, 15 MLR-HCD-59.
S. 31-Section 31 provides that of the Tribunal is of opinion that it is necessary to put any woman irrespective of her age or child in safe custody in course of trial it will be competent to direct to put such woman or child at any place selected for such purpose in the custody of the Government authority out side jail or in the custody of any person or organization considered to be proper in the opinion of the Tribunal in the facts and circumstances of the case. In the instant case the petitioner Merina Renu being still minor the tribunal has rightly ordered to give her in the custody of her mother.
Merina Renu Vs. The State,14 BLT-HCD-177.
Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995
S. 6(1)-Charge of rape need to be proved by trustworthy evidence-Medical examination of the prosecutrix necessary-
In trying and convicting an accused the tribunal must be cautious in scrutinizing the evidence in a manner so to be sure that innocentt person is not punished. In a case where there is enmity between the parties, the delay in lodging FIR, non-examination of the prosecutrix by medical officer, absence of marks of violence on the person of the victim and the conflicting evidence on material point render the prosecution story doubtful leading to the acquittal of the accused.
Sobuj (Md.) Vs. The State 11 MLR (2006)-HCD-284.
Section 34(2)(3)-Pending cases and appeals-Despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. BLAST vs State, 67 DLR (AD) 185
Nari-O-Shishu Nirjatan Daman Ain, 2000 (VIII of 2000)
Section 34
The Appellate Division held that-
(a) Sub-sections (2) and (4) of section 6 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sub-sections (2) and (3) of section 34 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and section 303 of the Penal Code are declared ultravires the Constitution.
(b) Despite repeal of the Ain of 1995, the pending cases and pending appeals in respect of those offences shall be tried and heard in accordance with the provisions of the Ain of 1995, but the sentences prescribed in respect of similar nature of offences in the Ain of 2000 shall be
applicable. (c) There shall be no mandatory sentence of death in respect of an offence of murder committed by an offender who is under a sentence of life imprisonment.
Idris Sheikh Vs. Bangladesh (Civil), 6 ALR(2015)-AD-1.
Evidence Act (1 of 1872) Sections 114(g)
The allegation of abduction has not been proved only because of lack of evidence and therefore we have no hesitation to hold that the prosecution has failed to prove the allegation of abduction beyond reasonable doubt....(30) 73 DLR (2021) 278
Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000) Sections 7/9(2) and 30
The prosecution has been unable to prove the charge of rape on the person of the victim, although investigating officer submitted charge sheet against the accused persons under sections 7/9(2)/30 of the Ain and the charge was framed under the same sections but the charge of rape and the abduction has not been proved beyond reasonable doubt and, as such, appellate Court can travel from the case of Nari-o-Shishu Nirjatan Daman Ain to the Penal Code, if the allegation of sexual violence or assault and abduction is not proved beyond reasonable doubt by the prosecution witnesses. ...(29) 73 DLR (2021) 278
Nari-O-Shishu Nirjatan Daman Ain [VIII of
2000] Section 11(ka) read with
Code of Criminal Procedure [V of 1898]
Section 161
The Appellate Division observed that the High Court Division found that the investigation officer (P.W.6) in his cross-examination clearly stated that the witnesses during examination under section 161 of the Code of Criminal Procedure stated that when the occurrence took place, accused Rezaul Islam was not present at the place of occurrence. The High Court Division further found that the cause of death could not be determined by the Medical Board in the absence of any poison in the viscera report and that whether the death was homicidal in nature or not. The High Court Division also found that the prosecution witnesses could not prove that on night of occurrence accused Rezaul Islam was at his house. The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, this criminal petition is dismissed. [2023] 27 ALR (AD) 34
Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]
Section 9(1) read with
Penal Code [XLV of 1860]
Sections 342/323/313/ 379/ 114 read with
Code of Criminal Procedure [V of 1898]
Section 561A
The High Court Division committed serious error in considering the evidence of P.W-1 and medical report in exercising the power under section 561A of the Code of Criminal Procedure at this stage when the prosecution yet not completed to adduce its evidence. The High Court Division has not been empowered to usurp the jurisdiction of the trial Court invoking section 561A of the Code of Criminal Procedure. [2023] 27 ALR (AD) 37
Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000] (as amended in 2003)
Section 9(2)
The confession made by a co-accused Mosila in the facts and circumstances of the instant case cannot be said that it is corroborated by other evidence and, as such, it cannot be the sole basis of conviction of another co-accused. [2023] 27 ALR (AD) 41
Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]
Section 7/30 read with 1860]
Penal Code [XLV of
Section 302/201
It was duty of the prosecution to disclose the exact date and time of arrest or surrender of the appellant to the Police for the reasons that the police was not authorized to keep the appellant in their custody for a period more than 24 hours without any order of the Court.
It is the duty of the Court to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. The evidentiary value of such statement depends upon the veracity of the witnesses to whom it is made and the circumstances in which it came to be made and actual word used by the accused. Such statement must pass the test of reproduction of exact words, the reason or motive of making such statement.
Considering the facts and circumstances of the case, the Appellate Division is of the view that the prosecution has not been able to prove its case beyond all shadow of doubt against the appellant, so the appellant is entitled to get benefit of doubt. Accordingly, the Appellate Division finds substance in the appeal. Thus, the appeal is allowed. [2023] 27 ALR (AD) 53
নারী ও শিশু নির্যাতন দমন আইন-২০০০
ধারা ১১(ক)
মৃত্যুদন্ড রেফারেন্স
রাষ্ট্রপক্ষ এই মামলা যুক্তিসংগত সন্দেহ বহির্ভূতভাবে (beyond reasonable doubt) প্রমাণ করতে সম্পূর্ণভাবে ব্যর্থ হয়েছেন । রাষ্ট্রপক্ষ এও প্রমাণ করতে ব্যর্থ হয়েছেন যে, এই মামলায় আসামীর উপর ঋণাত্মক দায় নীতিটি প্রযোজ্য হবে। উপরোক্ত প্রেক্ষাপটে এ আদালতের অভিমত এই যে, এই মৃত্যুদণ্ড রেফারেন্স মামলাটি গ্রহণ করা কোনোভাবেই যুক্তিসংগত হবে না বিধায় এটি নাকচ করা উচিত। পাশাপাশি যেহেতু আপীলকারী পক্ষ দেখাতে সমর্থ হয়েছে যে, আসামীর বিরুদ্ধে তর্কিত রায়ে ট্রাইব্যুনাল আসামীকে বেআইনীভাবে দোষী সাব্যস্ত করেছেন এবং মৃত্যুদন্ড প্রদান করেছেন সেহেতু উক্ত আপীল মঞ্জুরপূর্বক ট্রাইব্যুনাল কর্তৃক প্রদত্ত তর্কিত রায় বেআইনী ঘোষণা করা উচিত বলে আমরা মনে করি। সুতরাং আসামী খালাস পাওয়ার অধিকারী। [2023] 27 ALR 1
সুরতহাল প্রতিবেদনের তথ্য/বক্তব্যঃ
সংশ্লিষ্ট সাক্ষীগণ আদালতে বক্তব্য দিয়ে সমর্থন না করলে সুরতহাল প্রতিবেদনের বক্তব্য/তথ্য সাক্ষ্য হিসাবে গৃহীত হবে না।
উক্ত প্রতিবেদনে উল্লেখিত শোনা বা ধারণাপ্রসূত বক্তব্য ফৌজদারী কার্যবিধির ১৬২ ধারা এবং সাক্ষ্য আইনের ৬০ ধারা দ্বারা সাক্ষ্য হিসাবে বারিত হবে।
হাইকোর্ট বিভাগের সিদ্ধান্ত: ১) এই মৃত্যুদন্ড রেফারেন্সটি নাকচ করা হলো (rejected)।
২) আসামী আব্দুল্লাহ ওরফে তিতুমীর ওরফে তিতু কর্তৃক দাখিল কৃত ফৌজদারী আপীল নং ৫৬৫৬/২০১৭ মঞ্জুর করা হলো এবং সাথে সাথে নারী ও শিশু নির্যাতন দমন ট্রাইব্যুনাল, যশোর কর্তৃক নারী ও শিশু মামলা নং ৬০/২০১৩ ১৭.০৫.২০১৭ ইং তারিখে প্রদত্ত তর্কিত আদেশ ও রায়টি বাতিল করা হলো (set aside)। সেই মর্মে আসামীর দাখিলকৃত জেল আপীল নং ২১০/২০১৭ টি নিষ্পত্তি করা হলো (disposed of)। সুতরাং আপীলকারী আব্দুল্লাহ ওরফে তিতুমীর ওরফে তিতু কে খালাস প্রদান করা হলো।
৩) জেল কর্তৃপক্ষসহ সংশ্লিষ্ট কর্তৃপক্ষকে নির্দেশ দেয়া গেল যে, অন্য কোন মামলায় সংশ্লিষ্ট না থাকলে এই আপীলকারী আব্দুল্লাহ ওরফে তিতুমীর ওরফে তিতু, পিতা মোঃ আইয়ুব আলী, সাং সুলতানপুর (দক্ষিণ পাড়া) (বাবুপাড়া), থানা-কোতয়ালী, জেলা- যশোর কে তাৎক্ষণিকভাবে জেল থেকে মুক্ত করে দেয়া হোক। আদালতের উপরোক্ত আদেশ সম্বলিত একটি অগ্রিম আদেশ প্রেরন করা হোক।
নিজের চোখে দেখেননি যাদের কাছ থেকে শুনেছেন তারা আদালতে এসে সেই বক্তব্য সমর্থন করেনি।
আসামী ঘটনার বসত ঘরে উপস্থিত ছিল বা আগুন আগুন চিৎকার ইত্যাদি বিষয় তদন্তকারী কর্মকর্তা (পি.ডাব্লিউ-৮) নিজের চোখে দেখেননি । বরঞ্চ তিনি কারো কারো বক্তব্য থেকে শুনে এই বিষয়টি উল্লেখ করেছেন এবং যাদের কাছ থেকে তিনি শুনেছেন তারা আদালতে এসে সেই বক্তব্য সমর্থন করেনি। সুতরাং রামেশ্বর দয়াল মামলার যে আইনী বক্তব্য তা কোনোভাবেই সুরতহাল প্রতিবেদন সংক্রান্ত বিজ্ঞ ডেপুটি অ্যাটর্নি জেনারেলের বক্তব্যকে সমর্থন করে না, বরং তাঁর সংশ্লিষ্ট বক্তব্যের বিরোধিতা করে ।.................. (৫.১০) [2023] 27 ALR 1
সাক্ষ্য আইন, ১৮৭২
ধারা ১০৬
ঋণাত্মক দায় ও নরহত্যাঃ
ঘটনার সময় স্ত্রী তার স্বামীর হেফাজতে ছিল অর্থাৎ স্বামীর উপস্থিতি প্রমাণিত না হলে সচরাচর প্রচলিত সাক্ষ্য আইনের ১০৬ ধারার ঋণাত্মক দায় নীতিটি স্বামীর উপর প্রযোজ্য হবে না। সেক্ষেত্রে রাষ্ট্রপক্ষকে যুক্তিসঙ্গত সন্দেহের উর্ধ্বে প্রমাণ করতে হবে যে- (১) স্ত্রী হত্যাকান্ডের শিকার হয়েছে এবং (২) তা স্বামীর দ্বারা সংঘটিত হয়েছে । [2023] 27 ALR 1]
The scheduled offence of the Ain and offences defined in the Penal Code can be tried jointly by the Tribunal:
The words, “ট্রাইব্যুনাল একটি দায়রা আদালত বলিয়া গণ্য হইবে এবং এই আইনের অধীন যে কোন অপরাধ বা তদনুসারে অন্য কোন অপরাধ বিচারের ক্ষেত্রে দায়রা আদালতের সকল ক্ষমতা প্রয়োগ করিতে পারিবে।” of Section 25 ( 1 ) of the Ain are significant. Those words clearly indicate that the Ain authorises the Tribunal to try both scheduled offence of the Ain and non-scheduled offence together and in such circumstances the Tribunal shall exercise all the powers of a Court of Sessions. Sub- Sections (2), (3) and (4) of Section 26 of the Ain relate to the appointment of the Judge of the Tribunal which provide that Judge of the Tribunal should be appointed from the District and Sessions Judges. The Government may give responsibility to the District and Sessions Judge to act as Judge of the Tribunal in addition to his charge if it feels necessary. It is also provided that Additional District and Sessions Judges are also to be included as District and Sessions Judge. Sub-section 3 of Section 27 of the Ain authorises Tribunal to try scheduled and non-scheduled offences jointly for the interest of justice following the provisions of the Ain. In view of the discussions made above we have no hesitation to hold that the scheduled offence of the Ain and offences defined in the Penal Code can be tried jointly by the Tribunal. (Para 11)
Section 25 of the Nari-O-Shishu Nirjatan Daman Ain, 2000:
Under the Ain, the tribunal will enjoy all powers which a Court of Sessions enjoys save and except the ones specifically denied:
The Nari-O-Shishu Nirjatan Daman Tribunal is also a Court of Sessions of original jurisdiction as per provision of section 25 of the Ain since it has been specifically said in the Ain that the Tribunal shall be deemed to be a Court of Sessions. The words " ট্রাইবুনাল একটি দায়রা আদালত বলিয়া গণ্য হইবে ” in legislation clearly expressed the intention of the Legislature that the Tribunal is to be act as Court of Sessions which is deeming provisions and are to strictly limited to the statutory purpose they are created for. It is our duty to ascertain the purpose for which such fiction is created. A deeming provision must be construed contextually and in relation to the legislative purpose. Section 25 of the Ain must lead to the inescapable conclusion that the statutory fiction laid down in it must be resorted to and full effect must be given to the language employed. Such deeming provision has been introduced to mean that the tribunal shall be deemed to be the Court of Sessions of original jurisdiction. That is, the Tribunal is a Court of original criminal jurisdiction and to make it functionally oriented some powers were conferred by the Ain setting it up and except those specifically conferred and specifically denied it has to function as a Court of original criminal jurisdiction not being hide bound by the terminological status or description of a Court of Sessions. Under the Ain, it will enjoy all powers which a Court of Sessions enjoys save and except the ones specifically denied. (Para 12)
In the instant case charge was framed for the commission of offence that the respondent had killed his wife demanding dowry, but it is proved that he had killed his wife but demand of dowry has not been proved. Since the Tribunal has authority to try scheduled and non-scheduled offence together and it is authorized to act as Court of Sessions, we do not find any jurisdictional error if the accused is convicted and sentenced for the charge of killing wife. Such analogy is also applicable for the Appellate Court as well. (Para 15)
Section 25 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and 227 of the Code of
Criminal Procedure, 1898: The laws of procedure are devised for advancing justice and not impeding the same. The main object and purpose of enacting procedural laws is to see that justice is done to the parties. The Ain contains no provision relating to framing of charge. Hence, in view of Section 25(1), the provisions of the Code which relate to framing of charge are applicable to the Ain. Section 227 of the Code clearly mentions that Any Court may alter or add to any charge at any time before judgment is pronounced. In view of this section it becomes very clear that the High Court Division as the appellate authority in the present case has the power to alter the charge framed by the Tribunal and convict the accused on the same. (Para 18)
Section 11(Ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000; Section 302 of Penal Code and Section 238 of the Code of Criminal Procedure, 1898:
In section 238 of the Code, it has been provided that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and such combination is proved, he may be convicted of the minor offence though he was not charged with it. The section further provides that when a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted for commission of minor offence, although he is not charged with it. In the present case although the accused were charged with the offence of murder for dowry under Sections 11(Ka)/30 of the Ain, on the proven facts they were convicted for the offence of murder only under section 302/34 of the Penal Code. In terms of punishment, it is very much clear that an offence under Section 11(Ka) of the Act is graver than an offence punishable under section 302 of the Penal Code. Hence, an offence under section 302 of the Penal Code can be considered as a minor offence than that of an offence under Section 11(Ka) of the Ain and therefore, framing of charge was not required for conviction. (Para 19 and 20)
Alternation of charge from 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 to
Section 302 of the Penal Code will not cause prejudice to the accused: In order to convict a person under minor offence, though charged under major offence, the ingredients constituting the offence under the minor offence should be common as that of the ingredients constituting major offence and to convict him, some of the ingredients of the major offence could be absent. Since the offence under Sections 11(Ka)/30 of the Ain is a graver offence wherein the charge as to killing of the wife has been framed along with charge of demanding dowry than that of the case under Section 302/34 where the charge of killing of any person is usually be brought against accused, we are of the view that the alternation of charge from 11(Ka) of the Ain to Section 302 of the Penal Code will not cause prejudice to the accused. (Para 22)
Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal: Joint trial of different offences under different enactments does not vitiate proceedings in the absence of prejudice to the accused, particularly when the special enactment authorizes the Court to try different offences jointly where a charge is framed for one offence but offence committed is found to be some other than the one charged, provided, the same facts can sustain a charge for the latter offence, the accused can be convicted for such an offence. Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal. (Para 24)
The Appellate Court's jurisdiction is co-extensive with that of the trial court:
The Appellate Court's jurisdiction is co-extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues.
(Para 25)
In the larger interest of justice the Court may overlook a mere irregularity or a trivial breach in the observance of any procedural law: Depending on the facts and circumstances of a particular case in the larger interest of justice the Court may overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court may pass any appropriate order which will serve the interest of justice best. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. It is intended to achieve the ends of justice and normally, not to shut the doors of justice for the parties at the very threshold. (Para 26)
The High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case:
Our final conclusion is that the High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case. An Appellate Court has the same power as that of the trial Court i.e. the Tribunal and therefore, as an Appellate Court the High Court Division in the present case is competent to convert the conviction to secure the ends of justice. Undoubtedly such an Act of the High Court Division shall in no way prejudice the accused and State; otherwise order of remand shall entail unnecessary time, money and energy due to fruitless or useless prosecution and defence. Similarly, the Tribunal which is created under the Ain shall be deemed to be the Court of Sessions of original jurisdiction and, is entitled to alter/amend the charge framed under Section 11(Ka) of the Ain to one under Section 302 of the Penal Code and to dispose of the case finally in accordance with law if the accused is not otherwise prejudiced. (Para 28) 18 SCOB [2023] AD 1
Editors’
Note
The
question came up for consideration in this case whether a fresh inquiry is
required, when a complainant asserts with an affidavit before the Nari-O-Shishu
Nirjatan Daman Tribunal that she went to the police station but police refused
to accept her complaint, to ascertain if she actually went to the police
station. The Appellate Division held that there is no legal necessity to make
an inquiry whether the complainant went to the police station and he/she was
refused by the police before submitting the complaint before the Tribunal, if
the Tribunal is satisfied about the truthfulness of the claim. But the Tribunal
can direct anybody other than a police officer to hold an enquiry to find out
primarily whether the allegation of committing of offence made in the complaint
is true. In such a situation if a police officer is directed to hold an
enquiry, cognizance taken on the basis of such enquiry report vitiates entire
proceeding. In the instant case the Tribunal convicted and sentenced the
Appellant finding him guilty under section 11(Ga) of the Nari-O-Shishu Nirjatan
Daman Ain, 2000 and the High Court Division affirmed the conviction but the
Appellate Division found that the evidence adduced by the prosecution was not
enough to convict the Appellant beyond reasonable doubt and thus acquitted him
of the charge.
Section
27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000:
In the
case in hand, the complainant filed the petition of complaint before the
Tribunal supported by an affidavit stating that statements made in the
complaint is true. And in the complaint it was asserted that she went to the
police station but the police refused to accept her complaint and the concerned
Tribunal being satisfied about the same, upon examining the complainant,
directed to hold an inquiry into the allegation. Since the complainant by swear
in an affidavit before the Tribunal asserted that the concerned police officer
refused to accept her complaint and the Tribunal has also been satisfied about
the said assertion, in our view, there is no legal necessity to make an inquiry
into the said issue afresh, i.e. whether the complainant went to the police
station and he/she was refused by the police before submitting the complaint
before the Tribunal. Thus, the submissions of the learned Advocate for the
appellant to the effect that the complainant in support of the complaint did
not swear in any affidavit and did not make any statement that she went to the
police station and the concerned police officer refused to accept her complaint
and thus the learned Judge of the Tribunal has committed serious error of law
in entertaining the complaint and sent it for inquiry have no leg to stand.
(Para 17, 18 and 19)
Section
27 (1 Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000:
Enquiry
must be made by any other person than police: We are of the view that the
Tribunal did not commit any illegality in entertaining the complaint filed by
respondent No. 2. Section 27 (1 Ka) clearly speaks that if the learned Judge of
the Tribunal is satisfied as to the filing of the complaint he can direct the
Magistrate or any other person to make an inquiry with regard to the
allegation. The expression "Ab¨ †Kvb e¨w³' (any other person) does not include any police officer but, it
includes any public officer or any private individual or any other responsible
person of the locality upon whom the Tribunal may have confidence to conduct
the inquiry in respect of the complaint logged before it. In the instant case
the learned Judge of the Tribunal acted illegally in directing the
Officer-in-Charge of Pahartoli Police Station to make an inquiry in respect of
the complaint and, thereafter, taking cognizance on the basis of such inquiry
report has vitiated the entire proceeding. (Para 24 and 25) [17 SCOB [2023] AD
61]
Editors’
Note
The
petitioner of the case was sentenced to death for murdering his wife. The
sentence was confirmed by the High Court Division and was upheld by the
Appellate Division. Learned Counsel on behalf of the petitioner submitted
during review hearing that death penalty was imposed upon the petitioner based
on circumstantial evidence where there were several missing links. Further
submission of the Counsel was that the petitioner is in condemned cell for more
than 18 years. Therefore, considering his prolonged custody in the condemned
cell he should be acquitted. The Appellate Division taking into consideration
the prolonged custody in the condemned cell of the petitioner together with the
fact that under the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 sentence
of death was the only punishment for an offence committed by the petitioner but
subsequently in the Nari-O-Shishu Nirjatan Daman Ain, 2000 imprisonment for
life for the same offence was also included, commuted the sentence of the
petitioner to imprisonment for life from death.
The law
is well settled that there must be some circumstances of a compelling nature together
with prolonged custody which would merit consideration for commutation. (Para
13)
The
condemned prisoner has been languishing with the agony of death in the
condemned cell for almost 18 years not due to any fault of his own. That being
the situation, the fact of prolonged incarceration together with the discussion
that we made above fortified with the recently passed decision of this Division
can be considered as a mitigating circumstances and for that reason we are
inclined to modify the order of sentence and commute the sentence of death to
that of imprisonment for life. (Para 18, 19)
[Anowar
Talukder Vs. The State (Md. Ashfaqul Islam, J)17 SCOB [2023] AD 70]
Section-31
Section 31 provides that of the Tribunal is of opinion that it is necessary to put any woman irrespective of her age or child in safe custody in course of trial it will be competent to direct to put such woman or child at any place selected for such purpose in the custody of the Government authority outside jail or in the custody of any person or organization considered to be proper in the opinion of the Tribunal in the facts and circumstances of the case- In the instant case the petitioner Merina Renu being still minor the tribunal has rightly ordered to give her in the custody of her mother. Merina Renu Vs The State 14 BLT (HCD) 177
Section-31
Safe custody of the victim Minor girl
On plain reading of section 31 discretionary authority of the Tribunal to pass an order to put any girl in safe custody outside jail in the custody of Government authority or any person or organization in course of trial of an offence under the Ain is intended to ensure safety, security and welfare of the girl, when Nari-O-Shishu Nirjatan Daman Tribunal by order dated 16.3.2006 directed for release minor girl Jannatun Noor Popy victim of an offence under the Ain and allowed custody of the minor to her mother no person or organization is authorised to question validity of the order under section 31 of the Ain. Mostafa Kamal Vs. The State 14 BLT (HCD)-364
Section-31
No person or organization can ask for safe custody of victim girl or child as of right unless such custody is assigned or given to it at the sole discretion of the Tribunal. Mostafa Kamal Vs. The State 14 BLT (HCD)-364
Section -31
Welfare of a minor girl
The Tribunal itself having found "since the victim is a minor she cannot make her choice" - the tribunal failed to consider that the minors refusal to go her father is irrelevant and the same is not a condition precedent for giving her custody to the father. It is settled that father as the well wisher of a minor daughter is entitled to her custody and a minor in her own interest should be given to her father's custody. It also decided by the Appellate Division that any observation made by the minor girl is a victim of a offence of abduction and rape and it is not at all desirable that she should be kept in jail for a long and indefinite period which will be detrimental to her welfare. In our view the welfare minor girl Ishrat Shirin will be best served if she is given to her father. Nannu Miah Vs The State & Ors. 13 BLT (HCD)-245.