Case Reference - Legal Case Laws and Judgments in Bangladesh | কেস রেফারেন্স - বাংলাদেশে আইনি মামলার রায় ও আইন

Code of Criminal Procedure, 1898

Schedule II Col. 4—Since the offence in question is punishable with imprisonment up to five years there is no illegality in passing an order of issuance of warrant of arrest against the accused persons. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Section 1(2) & 339C—Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for “more speedy trial”. If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law-makers. Kamruzzaman vs State 42 DLR (AD) 219.

Sections 1(2) & 417(1)—Appeal filed under section 417(2) CrPC against the judgment and order of acquittal passed by a Special Tribunal is not maintainable—An appeal against a judgment of Special Tribunal will have to be filed under section 30—i) of the Special Powers Act—The Code of Criminal Procedure shall not affect any special forum of procedure prescribed by any law. State vs Wanur Rahman 40 DLR 346.

Section 1(2) & 339C-Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the Code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for "more speedy trial". If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law-makers. Kamruzzaman vs State 42 DLR (AD) 219.

Sections 1(2) & 417(1) Appeal filed under section 417(2) CrPC against the judgment and order of acquittal passed by a Special Tribunal is not maintainable An appeal against a judgment of Special Tribunal will have to be filed under section 30-1) of the Special Powers Act The Code of Criminal Procedure shall not affect any special forum of procedure prescribed by any law. State vs Wanur Rahman 40 DLR 346.

Section 2-The order passed by the Ses- sions Judge taking cognizance in revision from naraji petition has no support of law as it is the duty of the Magistrate to take cognisance of the case and by the impugned order, the Sessions Judge usurped the jurisdiction of the Magistrate which the law does not permit him to do. Abdul Aziz Master vs State 59 DLR 468.

Section 2-The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigation within the specified period. Amalen- du Majumder vs State 49 DLR 204.

Sections 2(h) & 200-The term 'naraji means disapproval of the Final Report True. It may either challenge the report on certain grounds and pray for its rejection or may pray for further action by the Court and rejection of the report by reiterating the allegations made in the petition of complaint. When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence.

The action upon the naraji petition by the Court depends on whether the naraji petition is made before or after the order of discharge has been passed by the Magistrate. If it is filed after an order of discharge it will in all probability be treated as a complaint by the Magistrate as in almost all such cases it will contain allegation of offence and the person filing the naraji petition will be examined by the Magistrate as a complain- ant under section 200 of the Code of Criminal Procedure. In case of discharge by the Magistrate the only course remaining open to the complain- ant is by way of approaching the Sessions Judge with an application for further investigation. But if the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the com- plainant, as he thinks fit. Abu Bakar vs State 46 DLR 684.

Section 2—The order passed by the Sessions Judge taking cognizance in revision from naraji petition has no support of law as it is the duty of the Magistrate to take cognisance of the case and by the impugned order, the Sessions Judge usurped the jurisdiction of the Magistrate which the law does not permit him to do. Abdul Aziz Master vs State 59 DLR 468.

Section 2—The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigation within the specified period. Amalendu Majumder vs State 49 DLR 204.

Sections 2(h) & 200—The term ‘naraji’ means disapproval of the Final Report True. It may either challenge the report on certain grounds and pray for its rejection or may pray for further action by the Court and rejection of the report by reiterating the allegations made in the petition of complaint. When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence.

The action upon the naraji petition by the Court depends on whether the naraji petition is made before or after the order of discharge has been passed by the Magistrate. If it is filed after an order of discharge it will in all probability be treated as a complaint by the Magistrate as in almost all such cases it will contain allegation of offence and the person filing the naraji petition will be examined by the Magistrate as a complainant under section 200 of the Code of Criminal Procedure. In case of discharge by the Magistrate the only course remaining open to the complainant is by way of approaching the Sessions Judge with an application for further investigation. But if the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the complainant, as he thinks fit. Abu Bakar vs State 46 DLR 684.

Section 4(1)(q)—The meaning assigned to the word “public” strongly indicates that a particular case may also be tried in a place other than the normal place where the sitting of the Court of Sessions takes place. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

Sections 4(1) and 167—The provisions intend to prevent any possible abuse by the police officer of his power while trying to make discovery of crime by means of wrongful confinement and do not intend to protect illegal act of the police officer. Saifuzzaman vs State 56 DLR 324.

Section 4(h)—Definition of expression “Complaint”—whether a Special Judge can be said to have taken cognizance on a complaint after it is taken cognizance of and then sent to him by the Magistrate. The expression “complaint” has been defined in section 4(h) of the Code of Criminal Procedure. It is defined there to mean an allegation made in writing or verbally to a Magistrate. Therefore, a complaint made orally or in writing to a Magistrate would be a complaint and when the Magistrate would be sending that complaint to the Special Judge along with the deposition of the witnesses and his comments for the deposition of the witnesses and his comments for the Special Judge to take cognizance and if that cognizance is taken again it could not be said that the Special Judge had not taken cognizance on a complaint. Matiur Rahman vs State 40 DLR 385.

Sections 4(b), 195(1)(c) & 417A(2)—The word “complainant” occurring in section 417A(2) must be extended upto the “aggrieved person” otherwise legislation so far it relates to a proceeding under section 195(1) of the Code will be of no avail. The aggrieved person at whose instance complaint petition was filed by the Magistrate under section 195(l)(c) is to be considered as a “complainant” as required under section 417A(2) with the aid of definition of complaint appearing in section 4(h) though not for all other purposes. Abdul Ahad vs State 58 DLR 311.

Section- 4(K)(L)-Inquiry and Investigation-Inquiry is always to be made by a Magistrate or any person as may be directed by the Court, whereas, the investigation has to be made by a Police Officer or by a person (other than a Magistrate) who is authorized by Magistrate in this behalf. To investigate into a cognizable offence, no order of a Magistrate is necessary. Investigation is totally a different concept from that of inquiry. State vs Secretary, Ministry of Public Administration, 67 DLR (AD) 271

Section 4(1)(q)- The meaning assigned to the word "public" strongly indicates that a parti- cular case may also be tried in a place other than the normal place where the sitting of the Court of Sessions takes place. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157. Sections 4(1) and 167-The provisions intend to prevent any possible abuse by the police officer of his power while trying to make discovery of crime by means of wrongful confinement and do not intend to protect illegal act of the police officer. Saifuzzaman vs State 56 DLR 324. Section 4(h)-Definition of expression "Complaint" whether a Special Judge can be said to have taken cognizance on a complaint after it is taken cognizance of and then sent to him by the Magistrate. The expression "complaint" has been defined in section 4(h) of the Code of Criminal Procedure. It is defined there to mean an allegation made in writing or verbally to a Magis- trate. Therefore, a complaint made orally or in writing to a Magistrate would be a complaint and when the Magistrate would be sending that com- plaint to the Special Judge along with the depo- sition of the witnesses and his comments for the deposition of the witnesses and his comments for the Special Judge to take cognizance and if that cognizance is taken again it could not be said that the Special Judge had not taken cognizance on a complaint. Matiur Rahman vs State 40 DLR 385. Sections 4(h), 195(1)(c) & 417A(2)-The word "complainant" occurring in section 417A(2) must be extended upto the "aggrieved person" otherwise legislation so far it relates to a procee- ding under section 195(1) of the Code will be of no avail. The aggrieved person at whose instance complaint petition was filed by the Magistrate under section 195(1)(c) is to be considered as a "complainant" as required under section 417A(2) with the aid of definition of complaint appearing in section 4(h) though not for all other purposes. Abdul Ahad vs State 58 DLR 311.

Section 5(1)(kha)- Government may in exercise of its power under section 5(1)(kha) of the Act 42 of 1992 has the option to revive the investigation. Sohrab Ali Dewan vs State, 64 DLR 106

Section 5(2)-Section 5(2) of the Code itself expressly has ousted its jurisdiction where special procedure has been prescribed in the special law itself. (PER M ENAYETUR RAHIM JAGREEING WITH MD FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41

Section 5(2)-Ain of 2004 has given exclusive power to the Commission to conduct it's cases including appeals in exercise of powers under section 5(2) of the Code read with sections 17, 18 and 33 of the Ain, 2004. Commission is a necessary party in appeals to be filed by the convicts and that the Commission through its prosecution unit has exclusive power to defend the judgments passed by a Special Judges in appeals pending in the High Court Division by accused-persons. Anti- Corruption Commission vs Monjur Morshed Khan, 64 DLR (AD) 124

Section 5(2)- Where offence is one under a special or local law but there is no enactment prescribing any procedure for dealing with the offence, the provisions of the Code shall be followed for such offence. Where a special law creating offences provided a special procedure for dealing with them, the provisions of the Code shall not apply in such cases. Where no such procedure has been provided for, the normal procedure in the Code shall be applicable. The Commission Ain contains complete procedure for inquiry, investi- gation, institution of cases and conducting such cases and there fore; the Code would have no application for the purpose of conducting cases instituted by the Commission. ACC vs Monjur Morshed Khan, 64 DLR (AD) 124

Section 5(2)- Section 5(2) of the Code itself expressly has ousted jurisdiction when special procedure has been prescribed in the special law itself. (PER M ENAYETUR RAHIM J) Mafruza Sultana va State, 66 DLR 280

Section 5—The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution, the word “law” means any Act, Ordinance, etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36.

Sections 5(2) and 167(5)—The powers conferred under the general provisions of the Code are subject to any special provisions enacted under the Special Powers Act. The Special Powers Act having made provisions with regard to the offence in question must be deemed to supersede the provisions of the Code. Taslima Begum vs State 42 DLR 136.

Sections 5(2) & 339D—Where the charge has been framed under section 409 of the Penal Code and section 5(2) of Act II of 1947, and in the absence of any provision for revival of the case on the expiry of the period of 2 years provided in section 8(a) of the Criminal Law Amendment (Amendment) Act there was no legal authority to revive the case under the provision of the Code of Criminal Procedure. Nur Israil Talukder vs State 52 DLR (A D) 51.

Code of Criminal Procedure, 1898 (V of 1898)

S. 5(2)-Section 5(2) of the Code itself expressly has ousted its jurisdiction where special procedure has been prescribed in the special law itself.(Per M Enayetur Rahim J agreeing with Md Faruque J).  Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41

Code of Criminal Procedure, 1898

Section 5(2)- The Depository Act is n special law If no procedure is provided in the special law then the provisions of the Code of Criminal Procedure will apply in so far as those are not provided by the special law The Depository Act is no doubt a special law. Generally, special laws specify the procedures to be followed in implementing the law. It is also usual for the special law to specify that if no procedure is provided in the special law then the provisions of the Code of Criminal Procedure will apply in so far as those are not provided by the special law. The statute in question is silent as to the procedure regarding cognizance. Applying the general legal principles, and in the light of section 5(2) of the Code, we are of the view that the provisions of the Code of Criminal Procedure will apply. Hence, the Magistrate was competent to take cognizance. The trial will take place before the Court of Sessions...Security & Exchange Commission VS Md. Sayadur Rahman, [6 LM (AD) 78]

Section 5-The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution, the word "law" means any Act, Ordinance, etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36. Sections 5(2) and 167(5)-The powers conferred under the general provisions of the Code are subject to any special provisions enacted under the Special Powers Act. The Special Powers Act having made provisions with regard to the offence in question must be deemed to supersede the provisions of the Code. Taslima Begum vs State 42 DLR 136. Sections 5(2) & 339D-Where the charge has been framed under section 409 of the Penal Code and section 5(2) of Act II of 1947, and in the absence of any provision for revival of the case on the expiry of the period of 2 years provided in section 8(a) of the Criminal Law Amendment (Amendment) Act there was no legal authority to revive the case under the provision of the Code of Criminal Procedure. Nur Israil Talukder vs State 52 DLR (AD) 51. Sections 6 & 7-The new Act has effected a change in the procedural law but it has not affected any vested right of the accused and the prosecution, because the accused had not, in fact, any absolute and vested right of stoppage and release. In that view of the matter it cannot be said that the appellant had any vested right under the old provision of sub-section (4) of section 339C to be released on the proceeding being stopped. The effect of repeal of the old provision followed by its reenactment will be that in the pending cases the new procedural law will apply because as a general rule alterations in the form of procedure are retrospective in character unless there is some contrary provision in the enactment. In our considered opinion the provision of sub-section (4) of section 339C of the Code of Criminal Procedure as amended by Act No. XLII of 1992 will be applicable to the pending cases. Abdul Wadud vs State 48 DLR (AD) 6.

Sections 6 & 7—The new Act has effected a change in the procedural law but it has not affected any vested right of the accused and the prosecution, because the accused had not, in fact, any absolute and vested right of stoppage and release.

In that view of the matter it cannot be said that the appellant had any vested right under the old provision of sub-section (4) of section 339C to be released on the proceeding being stopped. The effect of repeal of the old provision followed by its reenactment will be that in the pending cases the new procedural law will apply because as a general rule alterations in the form of procedure are retrospective in character unless there is some contrary provision in the enactment. In our considered opinion the provision of sub-section (4) of section 339C of the Code of Criminal Procedure as amended by Act No. XLII of 1992 will be applicable to the pending cases. Abdul Wadud vs State 48 DLR (AD) 6.

Section 9-No person shall be appointed a Special Judge unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. A Sessions Judge, an Additional Sessions Judge and an Assistant Sessions Judge are the officers to compose of a Sessions Division. A Sessions Judge in a Sessions Division is appointed under section 9 of the Code and he being the senior most judicial officers of the Sessions Division transfers the cases to Additional Sessions Judges or any other Judges for holding trial of cases as Special Judges of the Sessions Division. Anti-Corruption Commission, Dhaka vs Abdul Azim, 69 DLR (AD) 208

Sections 9, 17, 408 & 409—Admission of appeal or revision do not fall in the category of urgent application as mentioned in sub-section (4) of section 17 of the Code. When provisions of sections 9, 17,, 408 and 409 of the Code are considered together, it is clear to me that a Sessions Judge-in-charge cannot admit an appeal. Ibrahim Khalil vs State 50 DLR 192.

Section 9(2)—The order that was passed was absolutely without jurisdiction inasmuch as the place where it was passed was not a Court of Sessions Judge as contemplated under section 9(2) of the Code of Criminal Procedure. HM Ershad [former President Lieutenant General (Retd)] vs State 48 DLR 95.

Section 9(2)-A special order cannot be restricted to mean a particular situation according to a pre set formula. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

Section 9(2)—Section 9(2) gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

Section 9(2)—The contention that a Court of Sessions cannot have two sitting places is negatived by the very language of the section itself. Sayeed Farook Rahman vs Session Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

Section 9(2)-If there is a special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of the Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Sayeed Farook Rahman vs Sessions Judge, 49 DLR (AD) 157.

Section 9(3), Proviso—Interpretation of statute—A proviso is subservient to the main provision—It is not an enacting clause independent of the main enactment.

Our view is that a proviso cannot possibly deal with an entirely different topic or subject and it is subservient to the main provision. A proviso must be considered in relation to the principal matter to which it stands as a proviso. To treat the proviso as if it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, LJ in RV Dibdin, (1910) (Prob Dn) 57. The same view has been expressed in Corpus Juris Sedondum Vol. 82 (pp. 887-88) Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), Proviso and 28—Canon of construction of provisos—Jurisdiction occurring in sub-section (3) of section 9 is limited to trial jurisdiction if read with section 28.

Applying the afore-quoted well-known canon of construction of provisos, we may now say that Assistant Sessions Judges who shall be deemed to have been appointed as Additional Sessions Judges will carry their appointment for the exact purpose set out in the main sub-section, namely, to exercise jurisdiction in one or more such Courts”, that is, in the Courts of Session. Read with section 28, contained in the same Part II, the “jurisdiction” referred to in sub-section (3) of section 9 is limited to the trial jurisdiction. Hence the Assistant Sessions Judges deemed to be appointed as Additional Sessions Judges under the proviso to sub-section (3) shall exercise only trial jurisdiction as Additional Sessions Judges and nothing else. Part II of the Code does not control or government Part VII of the Code titled “Of Appeal, Reference and Revision.” Nurul Huda vs Baharuddin 41 DLR 395.

Section 9(3), Proviso and 31(4)—Distinction between Court of Sessions and Sessions Judge—Court of Sessions is a Court and the Sessions Judge is an office. Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), Proviso and 31(4)—Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge does not acquire the status of an Additional Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), 29C and 31(4)—Consequence of change brought in sections 29C and 31(4) àf the Code of Criminal Procedure—An Assistant Sessions Judge deemed to be an Additional Sessions Judge shall not be deemed to be an Additional Judge for all purposes under the Code, namely for hearing appeals revisions references and reviews if they are made over and transferred to him by Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), 29C, 31(4), 409—An Assistant Sessions Judge deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, e.g. for hearing appeals, revisions, reference and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abul Kashem vs State 43 DLR (AD) 77.

Sections 9, 17, 408 & 409-Admission of appeal or revision do not fall in the category of urgent application as mentioned in sub-section (4) of section 17 of the Code. When provisions of sections 9, 17, 408 and 409 of the Code are consi- dered together, it is clear to me that a Sessions Judge-in-charge cannot admit an appeal. Ibrahim Khalil vs State 50 DLR 192.

Section 9(2)- The order that was passed was absolutely without jurisdiction inasmuch as the place where it was passed was not a Court of Ses- sions Judge as contemplated under section 9(2) of the Code of Criminal Procedure. HM Ershad [former President Lieutenant General (Retd) vs State 48 DLR 95.

Section 9(2)-A special order cannot be restricted to mean a particular situation according to a pre set formula. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

Section 9(2)- Section 9(2) gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

Section 9(2)- The contention that a Court of Sessions cannot have two sitting places is negatived by the very language of the section itself. Sayeed Farook Rahman vs Session Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

Section 9(2)- If there is a special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of the Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Sayeed Farook Rahman vs Sessions Judge, 49 DLR (AD) 157.

Section 9(3)- Proviso-Interpretation of statute-A proviso is subservient to the main pro- vision-It is not an enacting clause independent of the main enactment.

Our view is that a proviso cannot possibly deal with an entirely different topic or subject and it is subservient to the main provision. A proviso must be considered in relation to the principal matter to which it stands as a proviso. To treat the proviso as if it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, LJ in RV Dibdin, (1910) (Prob Dn) 57. The same view has been expressed in Corpus Juris Secondum, Vol. 82 (pp. 887-88) Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), Proviso and 28-Canon of construction of provisos Jurisdiction occurring in sub-section (3) of section 9 is limited to trial jurisdiction if read with section 28.

Applying the aforequoted well-known canon of construction of provisos, we may now say that Assistant Sessions Judges who shall be deemed to have been appointed as Additional Sessions Judges will carry their appointment for the exact purpose set out in the main sub-section, namely, to exercise jurisdiction in one or more such Courts", that is, in the Courts of Session. Read with section 28, contained in the same Part II, the "jurisdic- tion" referred to in sub-section (3) of section 9 is limited to the trial jurisdiction. Hence the Assistant Sessions Judges deemed to be appointed as Additional Sessions Judges under the proviso to sub-section (3) shall exercise only trial jurisdic- tion as Additional Sessions Judges and nothing else. Part II of the Code does not control or government Part VII of the Code titled " Of Appeal, Reference and Revision." Nurul Huda vs Baharuddin 41 DLR 395.

Section 9(3), Proviso and 31(4)-Dis- tinction between Court of Sessions and Sessions Judge Court of Sessions is a Court and the Sessions Judge is an office. Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), Proviso and 31(4)-Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge does not acquire the status of an Additional Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), 29C and 31(4)-Consequence of change brought in sections 29C and 31(4) of the Code of Criminal Procedure An Assistant Sessions Judge deemed to be an Additional Sessions Judge shall not be deemed to be an Additional Judge for all purposes under the Code, namely, for hearing appeals, revisions, references and reviews if they are made over and transferred to him by Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.

Sections 9(3), 29C, 31(4), 409-An Assis- tant Sessions Judge deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, e.g. for hearing appeals, revisions, reference and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abul Kashem vs State 43 DLR (AD) 77.

Sections 10, 18, 20 & 21-A close look into section 4 of the said Ordinances vis-a-vis sections 10, 18, 20 and 21 of the Code, it would appear that in a Metropolitan Area some of the powers which were dealt with by the District Magistrate, have been given to the Police Commissioner, and some of them have been given to the Chief Metro- politan Magistrates and Metropolitan Magistrates, debarring the District Magistrate to exercise all or any of the powers which could be exercised by him before the promulgation of the said Ordinances and the amendments made in the Code and the Special Powers Act. Anwar Hossain vs State 55 DLR 643.

Sections 10, 18, 20 & 21—A close look into section 4 of the said Ordinances vis-a-vis sections 10, 18, 20 and 21 of the Code, it would appear that in a Metropolitan Area some of the powers which were dealt with by the District Magistrate, have been given to the Police Commissioner, and some of them have been given to the Chief Metropolitan Magistrates and Metropolitan Magistrates, debarring the District Magistrate to exercise all or any of the powers which could be exercised by him before the promulgation of the said Ordinances and the amendments made in the Code and the Special Powers Act. Anwar Hossain vs State 55 DLR 643.

Section 17A-Section 17A of the Code clearly has empowered a Sessions Judge to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or given special order consistent with the Code. Mahmudur Rahman Nazlu vs State, 64 DLR 179

Sections 18 and 167(7)-The Additional District Magistrate, Mymensingh had the jurisdiction to pass order for revival of the investigation within six months of the release of the accused. Faziul Hoque vs State 41 DLR 477.

Section 26—The statutory provisions recognise the Rule against double jeopardy and the principle of res judicata should apply to criminal proceedings in the same way as to civil proceedings but there being no conviction in the cases under reference, the principle of double jeopardy does not apply. Parveen vs State 51 DLR 473.

Sections 28 and 29(2)—An offence under section 382 of the Penal Code (XLV of 1860) is triable by Court of Sessions as per Column Eight of the Schedule. Karim Dad vs Abul Hossain 40 DLR 441.

Section 29—Labour Court and a Magistrate, 1st Class, having jurisdiction in the relevant matter, shall have concurrent jurisdiction to try an offence punishable under the Industrial Relations Ordinance. Under section 64 of the Ordinance a Magistrate, 1St Class, has also been invested with power to try ‘any offence under this Ordinance. The decision reported in 1985 BLD (AD) 278 is not applicable in the facts of the present case. Kamaluddin Chowdhury vs Mashiudowllah 43 DLR 137.

Section 30—A statement that contains self- exculpatory matter cannot amount to confession, if the exculpatory statement is of some facts which if proved would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms of the offence or, at any rate, substantially all the facts which constituted the offence. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.

Section 31—Question of sentence to be imposed on the accused after conviction. Although it is a matter of discretion of the trial Court interference by the appellate Court will be justified when trial Court fails to impose proper sentence. Santosh Mia vs State 42 DLR 171.

Section 31—Sentence increased from 2 years to 5 years because of the appellant’s being a member of the law enforcing agency and the heinousness of the crime. Santosh Mia vs State 42 DLR 171.

Section 31—A sentence must not be lenient vis-a-vis the nature of the offence committed and at the same time it must not be harsh either, so that the offender is sent to a point of no return turning him vindictive to the society. HM Ershad vs State 53 DLR 102.

Section 31—Sentence is essentially a matter of judicial discretion but it must be commensurate with the gravity of the offence.

The appellants have already lost their jobs and they have undergone the sustained spectre of the jail for a pretty long time by which they may be deemed to have purged their sins to a considerable extent and the same may be considered a mitigating circumstance for taking a lenient view in the matter of sentence. Abdur Rouf vs State 51 DLR 192.

Section 31—The trial Courts while awarding sentence must bear in mind that the sentence to be imposed upon the accused must be commensurate with the gravity of the offence. Nurul Alam Chowdhury vs State 51 DLR 125.

Section 31—As a matter of principle, it is not proper that by installments the question of sentence should be considered once in the High Court Division and again in the Appellate Division.

The learned Single Judge of the High Court Division while disposing of the criminal appeal was in seisin of the case both on fact and law and as such, he was competent to reduce the sentence. We do not think that it will be proper in the facts and circumstances of the present case to consider afresh the question of sentence on the ground of old age alone which consideration was there in the High Court Division. Mawlana Abdul Hye vs State, Hatem Ali Howlader vs State 51 DLR (AD) 65.

Section 33—

The term of imprisonment which can be legally awarded in default of payment of fine is not to exceed one-fourth of the maximum term of imprisonment fixed for the offence (Ref: 2 PLD 23 BJ). 6 DLR 488 Abdul Hakim Bhuiyan Vs. Golabdi

জরিমানা অনাদায়ে আইনগতভাবে প্রদত্ত কারাদন্ডের মেয়াদ অপরাধটির জন্য নির্ধারিত সর্বোচ্চ কারাদন্ডের এক চতুর্থাংশের অধিক নয়। 6 DLR 488 Abdul Hakim Bhuiyan Vs. Golabdi

Section 33—

In default of payment of fine proper course is to impose simple imprisonment (Ref: 21 DLR 46 WP). 26 DLR 350 Nizamuddin Meah Vs. The State

জরিমানা অনাদায়ে উপযুক্ত শাস্তি হচ্ছে বিনাশ্রম কারাদণ্ড দেয়া (Ref: 21 DLR 46 WP)। 26 DLR 350 Nizamuddin Meah Vs. The State

Section 33—

The Section governs both the cases where the offence is punishable with imprisonment and fine as well as where the offence is punishable with fine only. Maximum imprisonment in default of payment of fine is six months simple imprisonment (Ref: 5 BCR 266 AD; 5 BLD 166). 37 DLR 91 (AD) The State Vs. Abul Kashem

যে ক্ষেত্রে অর্থদন্ড যোগ্য এবং যেক্ষেত্রে অপরাধটি কেবলমাত্র অর্থদন্ডের শাস্তিযোগ্য, সেক্ষেত্রে উভয় বিষয় ৩৩ ধারা দ্বারা নিয়ন্ত্রিত হবে। জরিমানা অনাদায়ে সর্বোচ্চ কারাদন্ড হচ্ছে ৬ মাসের বিনাশ্রম কারাদণ্ড (Ref: 5 BCR 266 AD; 5 BLD 166)। 37 DLR 91 (AD) The State Vs. Abul Kashem

Section 35—Since both the condemned prisoners are sentenced to imprisonment for life there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. State vs Hamida Khatun 50 DLR 517.

In the absence of evidence to prove that stolen goods were received by the accused at different times, three separate convictions and sentences cannot be legally sustained (Ref: 9 PLD 801 Karachi). 7 DLR 184 (FC) Rafiquddin Vs. The Crown

চুরি যাওয়া দ্রব্যাদি যে বিভিন্ন সময় অভিযুক্ত ব্যক্তির দ্বারা গৃহীত হয়েছে এইরূপ প্রমাণ করার মতো সাক্ষ্য না থাকলে আলাদা আলাদা ভাবে প্রদত্ত ৩টি দন্ডাদেশ আইনগতভাবে বহাল থাকতে পারে না (Ref: 9 PLD 801 Karachi)। 7 DLR 184 (FC) Rafiquddin Vs. The Crown

Since both the condemned prisoners are sentenced to imprisonment for life, there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. 50 DLR 517 The State Vs. Hamida Khatun and another

যেহেতু উভয় দন্ডপ্রাপ্ত কয়েদীকে যাবজ্জীবন কারাদন্ডে দন্ডিত করা হয়েছে সেহেতু দন্ডবিধির ২০১ ধারায় তাদের বিরুদ্ধে আলাদা দন্ড দেওয়ার প্রয়োজন নাই। 50 DLR 517 The State Vs. Hamida Khatun and another

Changes in procedural law have retrospective effect unless contrary intention is expressed. Trial cannot be said to commence unless the substance of accusation is stated to the accused. A case becomes a pending case as soon as cognizance is taken, but trial cannot be said to be pending unless it has commenced, and it cannot commence unless a charge is framed. 8 BLD 270 Ruhul Amin Vs. The State

ভিন্ন ইচ্ছা প্রকাশ করা না হলে বিধিবদ্ধ আইনে সাধিত মূল বা পদ্ধতিগত আইনের ভূতাপেক্ষ কার্যকারিতা (retrospective effect) থাকবে। অভিযোগের সারমর্ম অভিযুক্তের নিকট বলা না হলে বিচার শুরু হয়েছে বলা যাবে না। আমল নেয়ামাত্র একটি মামলা নিষ্পন্নাধীন মামলায় পরিণত হয়। বিচার শুরু না হলে উহা নিষ্পন্নাধীন আছে বলা যায় না এবং চার্জ গঠন করা না হলে বিচার শুরু হতে পারে না। 8 BLD 270 Ruhul Amin Vs. The State

Section 35A—On a plain reading of the provision of section 35A, sub-section (1) and consequences thereof appearing in sub-section (2) with the preamble and section 29 of the Act and on consideration of the submissions made by the Attorney-General, the Court holds that provision of section 35A is quite consistent with the scheme of the Act and it will apply to the proceeding of the Act. Hazrat Ali vs State 59 DLR 496.

The proviso of the section provides that deduction from the sentence cannot be allowed when the minimum period of sentence is provided in the law (Ref: 8 BLT (HC) 119). 20 BLD 177 (HC) Habibur Rahman Alias Raju Vs. The State

এই ধারার অনুশর্তে বলা হয়েছে যে, আইনে সর্বনিম্ন দন্ড দেয়ার বিধান থাকলে দন্ড হ্রাস করার অনুমতি দেয়া যাবে না (Ref: 8 BLT (HC) 119)। 20 BLD 177 (HC) Habibur Rahman Alias Raju Vs. The State

Reduction from the sentence awarded for the period an accused had remained in custody before conviction cannot be allowed when the minimum punishment has been imposed. 7 BLC 162 (HC) Habibur Rahman Vs. The State (Criminal)

শাস্তির পরিমাণ সর্বনিম্ন হলে দন্ড দেয়ার পূর্বে যে সময় পর্যন্ত অভিযুক্ত ব্যক্তি হেফাজতে ছিল, ঐ সময় প্রদত্ত দন্ডের মেয়াদ থেকে হ্রাস করার অনুমতি দেয়া যাবে না। 7 BLC 162 (HC) Habibur Rahman Vs. The State (Criminal)

Section 35(d)- Transitory Provisions, pur- pose of Investigation pending immediately before commencement of the Ordinance-Magis- trate did not accept the Final Report and directed further investigation-Police on further investiga- tion submitted charge-sheet far beyond the "specified period" of 60 days as stated in section 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision-Charge-sheet was submitted one year after the Magistrate's order for further investigation-Accused-respon- dents, whether entitled to be released-Provision in section 35(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion-Investigation on which the Police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7) Consequently the charge-sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.

Sections 35A & 401- It cannot be applicable in respect of an offence which is punishable with death- Section 35A of the Code of Criminal Procedure is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discretionary power of the court. It cannot be applicable in respect of an offence which is punishable with death. Though the word only' is used in section 35A, the legislature without considering section 401 of the Code of Criminal Procedure and section 53 of the Penal Code has inserted the word only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the government only...... Ataur Mridha -VS- The State, [3 LM (AD) 513]

Code of Criminal Procedure [V of 1898]

Section 35A read with

Penal Code [XLV of 1860]

Section 302 read with Nari-0-Shishu Nijatan Daman (Bishesh Bidhan) Ain [XVIII of 1995]

Section 10(1)

So far the findings relating to demand of dowry by the petitioner from the father of deceased Aklima has not been established by any reliable evidence and as such the Appellate Division is unable to agree with the same. Accordingly the judgment and order of conviction and sentence passed under section 10(1) of Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 is liable to be set aside and the petitioner is convicted and sentenced under section 302 of the Penal Code.

The judgment and order passed by the Appellate Division in Jail Petition No. 8 of 2010 preferred by petitioner Raju Ahmed @ Raja Mia is reviewed and set aside. His order of conviction and sentence of death under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is set aside. However, he is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life and also to pay a fine of Tk. 1,000/- (one thousand) in default, to suffer rigorous imprisonment for 01 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. ...26 [31 ALR (AD) (2024) 18]

Section 35A—The inclusion of section 35A in the Code of Criminal Procedure was intended to deduct the period of custody from the total imprisonment. There is no provision in section 35A that such benefit will be applicable only in case of convict triable under the Penal Code. The intention of inclusion of 35A is to give benefit to all classes of convicts including the convict tried under the Special Powers Act. Nur Hossen Md vs State 60 DLR 363.

Section 35A—The offence committed by the accused, found aggressive with the intention of committing murder, is a culpable homicide not amounting to murder falling within exception No. 1 of section 300, Penal Code considering the state of his mind and it is a punishable offence under section 304 part—I of the Penal Code. Abdul Mazid vs State 58 DLR 355.

Section 35A—It is apparent that the provisions of the Code are applicable to a special law if a specific provision has been made to that effect either in the special law itself or in the Code. In this connection the decision in the case of Gahena vs State reported in 20 DLR (WP) 271 is relevant. Hiru Mia vs State 58 DLR 607.

Section 35A-An accused is entitled to deduction of the actual period during which he was in custody prior to passing of his sentence from his sentence of imprisonment for life. (PER SYED MAHMUD HOSSAIN, CJ). Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 35A-Whereas the benefits by way of remission, commutation, pardon etc. are discretionary, the benefit of deduction under section 35A of the Code is mandatory. The grant of benefits by way of remission etc. under the Jail Code and the Code of Criminal Procedure are not within the function of the Court, whereas the deduction mentioned under section 35A is a duty imposed squarely upon the Court. (PER MUHAMMAD IMMAN ALI, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 35A-Imprisonment for life prima- facie means imprisonment for the whole of the remaining period of convicts natural life. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code. In the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code. (PER HASAN FOEZ SIDDIQUE, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 35A-Under section 35A of the Code power has been vested in the Court to deduct the period of incarceration undergone by the convict prior to passing of the verdict of sentence from the total period of sentence awarded. (PER SYED MAHMUD HOSSAIN, CJ) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 35A-When any convict is sentenced to imprisonment for life it shall be the duty of the Court to deduct the period spent in custody before his conviction from the sentence awarded. There can be no doubt that the provision is mandatory. Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 35A-In the most serious cases, a whole life order can be imposed, meaning life does mean life in those cases. In those cases leniency to the offenders would amount to injustice to the society. In those cases, the prisoner will not be eligible for release at any time. The circumstances which are required to be considered for taking such decision are surroundings of the crimes itself background of the accused; conduct of the accused; his future dangerousness; motive; manner and magnitude of crime. (PER HASAN FOEZ SIDDIQUE, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 35A-The legislature knowing full well did not give the benefit of the discretionary power of the Court under section 35A to a person sentenced to imprisonment for life by the un- amended provision. The legislature keeping in mind about the original section substituted section 35A where it has been stated that the benefit of section 35A will not be available in the case of an offence punishable only with death. This subs- tituted section 35A also allowed the Court to deduct the sentence from the sentence of impri- sonment for life the total period during which the accused was in custody in connection with that offence. By using the words 'except' and 'only' in section 35A the legislature intended to give the benefit of section 35A to the accused who have been sentenced to imprisonment for life also. (PER SYED MAHMUD HOSSAIN, CJ) Ataur Mridha alias Ataur vs State (Criminal), 73 DLR (AD) 298

Section 35A-There is no scope to say that the power conferred on the Court is a discre- tionary power. The language used in amended section 35A is clear and unambiguous and that the Court cannot disregard the intention of the legislature expressed in plain language and is to deduct the period of actual detention from imprisonment for life prior to his conviction. (PER MUHAMMAD IMMAN ALI, J) Ataur Mridha alias Ataur vs State (Criminal), 73 DLR (AD) 298

Section 35A-By incorporating section 35A in the Code by the Code of Criminal Procedure (Amendment) Act, 2003 the legislature has provided the provision of deduction of imprisonment in cases where convicts may have been in custody except in the case of an offence punishable only with death. The Legislature did not use the word "only" unconsciously. The word 'only' has been used in section 35A to restrict the exception in case of an offence punishable with death. That is, in case of an offence punishable with death alone will not get the benefit of section 35A. That is, the category of offence is one which is punishable with death. In case of other clauses of offences not punishable with death, the provision of deduction of imprisonment in cases where convicts may have been in custody. (PER HASAN FOEZ SIDDIQUE, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

S. 35A-Provision of Section 35A is also applicable at the appellate stage. The State Vs. Farid Miah & Ors, 33 BLD (2013)-HCD-22.

Ss. 35A and 164

Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000)

S 4(1) (2) (Kha)

The prosecution failed to bring any other evidence poring that in order to kill Rehana, convict Md. Shamsuzzaman threw acid on her person. To convict an accused under section 4(1) of the said An of 2000 the prosecution has to prove that with an intention to kill, acid or other corrosive substance was thrown on the nerson of victim or the victim succumbed to injuries caused by acid or other corrosive substance. Thus the offence, committed by convict, appellants, does not come within the mischief of section 4(1) of the said Ain but it attracts section 4(2) (Kha) of the Ain of 2000. Accordingly, the conviction and sentence was modified and the appellants were convicted under section 4(2)(Kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced for rigorous imprisonment for 10 (ten) years with a fine of Tk. 20,000,00 in default to suffer imprisonment for one year more. The appellants will get benefit of section 35A, Cr.P.C.  Md. Ilias Hossain and others Vs. Bangladesh and others, (Cri.Appeal), 2 LNJ (2013)-HCD-7.

Sections 35A and 401-Any remission calculated by jail authorities under the provisions of the Jail Code are to be referred to the Government for release under section 401 of the Code. But such remission recommended by the Jail authority cannot be turned down by the Government without assigning any valid reason in writing as the rules relating to remission under Chapter XXI of the Jail Code were made under the mandate of section 59(f) of the Prisons Act, 1894. In order to give a harmonious construction of sections 45 and 53 of the Penal Code, we have to read those two sections in conjunction with sections 55 and 57 of the Penal Code and section 35A of the Code and we are of the view that imprisonment for life should be reckoned to a fixed period of rigorous imprisonment. (PER SYED MAHMUD HOSSAIN, CJ) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 35A-Section 35A of the Code is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discre- tionary power of the court. It cannot he applicable in respect of an offence which is punishable with death. Though the word 'only' is used in section 35A, the legisla- ture without considering section 401 of the Code and section 53 of the Penal Code has inserted the word 'only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the Government only. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214

Section 35A-Convict-appellant spent a considerable period in jail hajat which can be converted into custody period as per amended provision of 35A of the Code. The convict-appellant is an age old freedom fighter who has been suffering from old age complicities. Ends of justice would be met if it is ordered to award sentence, already under gone by him. AKM Mosharraf Hossain vs State, 65 DLR 564

Section 35A-The term of imprison ment would be counted under the provision laid down in section 35A of the Code. State vs Md Sukur Ali, 68 DLR 155

Sections 35A and 410-The trial Court did not deduct the total period during which the appellants had been in custody in connection with the case before conviction which was obligatory as per provision of section 35A of the Code. The period during which the appellants were in custody in connection with the case before conviction should be deducted from the awarded sentence of ten years. Jahirul Haque vs State, 64 DLR 234

Section 35A(1) Total period the appellants have been in custody before conviction in connection with offence shall be deducted from the sentence of imprison- ment awarded to them. Abdul Azid alias Azid Dacoit vs State, 66 DLR 605

Section 35(d)—Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the Final Report and directed further investigation—Police on further investigation submitted charge-sheet far beyond the “specified period” of 60 days as stated in section 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision—Charge-sheet was submitted one year after the Magistrate’s order for further investigation—Accused-respondents, whether entitled to be released—Provision in section 3 5(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the Police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7)-Consequently the charge-sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.

S. 39 read with 435-Allegation under Section 138 of the Negotiable  Instrument Act, 1881 (as amended)

Held: Whether the cheque in question was dishonoured for the "insufficiency of fund" or for the "dissimilarity of the signature of the drawer on the cheque as stated in the letter dated 30.08.2009 is a question of fact which can only be thrashed out during the trial. We do not see any scope of deciding such question in considering the merit of the revision application. Md. Arif-Uz-Zaman Vs. The State & Anr, 21 BLT (2013)-AD-234.

Section 41–

Enhancement of sentence—Competence of the Appellate Court to enhance—The appellate Court has no jurisdiction to enhance the sentence without serving notice upon the petitioner. 8 BLD 361 Yusuf Ali Vs. The State

আবেদনকারীকে নোটিশ না দিয়ে দন্ড বৃদ্ধি করার কোন এখতিয়ার আপীল আদালতের নেই। 8 BLD 361 Yusuf Ali Vs. The State

Ss. 42 and 561A-The provision of law imposes a legal duty upon every person aware of the commission of any offence or of the intention of any other person to commit any offence to give information thereof forthwith to the nearest Magistrate or Police Officer. The purposes of this section have been designedly

made so that crimes are brought to book and not suppressed by persons knowing about them. Refusal or omission to assist any public servant when bound by law to give assistance under section is punishable offence under Section 187 of the Penal Code. Ok-Kyung Oh Vs. State, 18 BLC (2013)-HCD-621.

Duty of Public

Section 44 of the Code of Criminal Procedure imposes a legal duty upon every per- son aware of the commission or of the intention of any other person to commit any of the offences specified therein to give information thereof forthwith to the nearest Magistrate or Police Officer. Md. Shafique Miah Vs. The State, 17 BLD(AD) 284

Public to give information of certain offences—Section 44 of the Code of Criminal Procedure imposes a legal duty upon every person aware of the commission or of the intention of any other person to commit any of the offences specified therein to give information thereof forthwith to the nearest Magistrate or Police Officer. 19 BLD 284 (AD) Md. Shafique Miah Vs. The State

এই ধারায় উল্লেখিত কোন একটি অপরাধ সংঘটন সম্পর্কে অথবা কোন অপরাধ সংঘটন করতে অন্য কোন ব্যক্তির অভিপ্রায় সম্পর্কে অবহিত হওয়া প্রত্যেক ব্যক্তির উপর উক্ত সংঘটন বা অভিপ্রায় সম্পর্কে সাথে সাথে নিকটতম ম্যাজিস্ট্রেট বা পুলিশ কর্মকর্তাকে তথ্য দেয়ার জন্য এই ধারা আইনগত দায়িত্ব অর্পণ করেছে। 19 BLD 284 (AD) Md. Shafique Miah Vs. The State

Section 51—

SEARCH OF ARRESTED PERSONS. 

Issue of notice to surety without first forfeiting his bond is irregular. 17 DLR 141 (WP) Sanwan Vs. The State

প্রথমে মুচলেকা বাজেয়াপ্ত না করে জামিনদারকে নোটিশ দেয়া অনিয়মিত বা আইনসম্মত নয়। 17 DLR 141 (WP) Sanwan Vs. The State

Section 54—Since the detenu was arrested under section 54 of the Code it was incumbent upon the police to produce her before a Magistrate within 24 hours but the police having not done so the right guaranteed to her under of the Constitution has been violated. Mehnaz Sakib vs Bangladesh 52 DLR 526.

Section 54—The provisions of this section shall also apply when a police officer receives any credible information that a person may be concerned in any cognizable offence or has a reasonable suspicion that a man might have com-mitted an act in any place out of Bangladesh which if committed in Bangladesh would have been punishable as an offence. Kalandiar Kabir vs Bangladesh 54 DLR 258.

Section 54-The word ‘concerned’ used in the section is a vague word which gives unhindered power to a police officer to arrest any person stating that the person arrested by him is ‘concerned’ in a cognizable offence. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 54-A police officer can exercise the power if he has definite knowledge of the existence of some facts and such knowledge shall be the basis of arrest without warrant. There can be knowledge of a thing only if the thing exists. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 54-If a person is arrested on the basis of credible information nature of the information, source of information must be disclosed by the police officer and also the reason why he believed the information. Bangladesh Legal Aid & Services Trust vs Bangladesh 55 DLR 363.

Section 54-if a person is arrested on ‘reasonable suspicion’, the police officer must record the reasons on which his suspicion is based. If the police officer justifies the arrest only by saying that the person is suspected to be involved in a cognizable offence, such general statement cannot justify the arrest. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 54-The power given to the police officer under this section to a large extent is inconsistent with the provisions of Part Ill of the Constitution. In view of this position such inconsistency is liable to be removed. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 54-The very system of taking an accused on ‘remand’ for the purpose of interrogation and extortion of information by application of force is totally against the spirit and explicit provisions of the Constitution. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 54-If the right to be informed of his grounds for arrest and the right to consult a legal practitioner are denied this will amount to confining him in custody beyond the authority of the Constitution. So some amendments in section 54 are needed so that the provisions of this section are made consistent with the provisions of Part III of the Constitution. Bangladesh Legal Aid and Services Trust vs Bangladesh 55 DLR 363.

Section 54-Police officer cannot arrest a person under section 54 of the Code with a view to detain him under the Special Powers Act. Such arrest is neither lawful nor permissible under section 54. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 54—The “reasonable suspicion” and “credible information” must relate to definite averments considered by the police officer himself before arresting a person under this provision. What is a “reasonable suspicion” must depend upon the circumstances of each particular case, but it should be at least founded on some definite fact tending, to throw suspicion on the person arrested and not on a mere vague surmise. Saifuzzaman vs State 56 DLR 324.

Section 54—A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to credible information. Saifuzzaman vs State 56 DLR 324.

Section 54—The authority made the orders of detention the moment the police officer made proposal for detention after arrest under section 54 of the Code. This shows the report of the police officer replaced the “satisfaction” of the authority in making an order of detention. It is beyond the scheme of the law that an order of detention can be made in respect of a person on the basis of a report of the police officer after his arrest under section 54 of the Code. Saifuzzaman vs State 56 DLR 324.

Section 54-First information report—It can be used for the purpose of testing the truth of the prosecution story and the Court may note any departure therefrom. State vs Billal Hossain Gazi 56 DLR 355.

Sections 54, 161, 163 & 167—It is not understandable how a police officer or a Magistrate allowing ‘remand’ can act in violation of the Constitution and provisions of other laws including this Code and can legalise the practice of ‘remand’. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Sections 54 and 167—This Court, in exercise of its power of judicial review when finds that fundamental rights of an individual has been infringed by colourable exercise of power by the police under section 54 or 167 of the Code, the Court is competent to award compensation for the wrong done. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Sections 54 and 167—Provisions of these Sections are to some extent inconsistent with the provisions of the Constitution—To remove the inconsistencies some recommendations as given herein are needed. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Sections 54 and 167—”State terrorism”— There are complaints of indiscriminate arrest of innocent persons who are subjected to third degree methods with a view to extracting confessions. This is termed by the Supreme Court of India as “state terrorism” which is no answer to combat terrorism. Saifuzzaman vs State 56 DLR 324.

Sections 54, 167- Recommendation to amend sections 54, 167- On a close look into the judgment of the High Court Division it cannot be said that it has directed the government to legislate and/or amend the existing sections 54, 167, 176, 202 of the Code and some other provisions of the Penal Code. It noticed that the police officers taking the advantage of the language used in section 54 are arresting innocent citizens rampantly without any complaint being filed or making any investigation on the basis of complaint if filed and thereby the fundamental rights guaranteed to a citizen under articles 27, 30, 31, 32, 33 and 35 of the constitution are violated. It has observed that no person shall be subjected to torture or to cruel, inhuman, dignity or degrading punishment or treatment. So, if an offender is taken in the police custody for the purpose of interrogation for extortion of information from him the law does not give any authority to the law enforcing agencies to torture him or behave him in degradation of his human value. It further observed that it is the basic human rights that whenever a person is arrested he must know the reasons for his arrest. The constitution provides that a person arrested by the police shall be informed of the grounds of his arrest and also that the person arrested shall not be denied of his right to consult or defend himself/herself by a legal practitioner of his/her choice. But it is seen that these rights are always denied and the police officers do not inform the nearest or close relations of the arrested persons and as a result, there is violation of fundamental rights guaranteed in the constitution. Accordingly, the High Court made Division some recommendations to amend sections 54, 167 of the Code and other provisions. Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Sections 54 and 167- The first question to be considered is whether the High Court Division has illegally presumed the misuse of power by the police while using the power under sections 54 and 167 of the Code. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Section-54, 60, 61, 167 and 176- Sections 54, 60, 61, 167 and 176 of the Code are relevant for our consideration which read as follows:

"54.(1) Any police-officer may, without an order from a Magistrate and without a warrant,arrest- 

firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned,

secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking:

thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Government,

fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;

fifthly, any person who obstructs a police- officer while in the execution of his duty. or who has escaped, or attempts to escape. from lawful custody;

sixthly, any person reasonably suspected of being a deserter from the armed forces of Bangladesh;

seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;

eighthly, any released convict committing a breach of any rule made under section 565, sub-section (3);

ninthly, any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition...... Ministry of Law, Justice & Parl. Afrs. VS BLAST. [3 LM (AD) 274]

Section-54, 60, 61, 167 and 176- Warrants of arrest- A police officer can act under clause one only when the offence for which a person is to be arrested is a cognizable offence. Such person, must, as a fact, have been concerned in such offence or there must have been a reasonable complaint made or credible information received that he has been so concerned. If the person arrested is a child under 9 years of age, who cannot under section 82 of the Penal Code commit an offence, the arrest is illegal. Where, a complaint is made to a police officer of the commission of a cognizable offence, but there are circumstances in the case which lead him to suspect the information, he should refrain from arresting persons of respectable position and leave the complainant to go to Magistrate and convince him that the information justifies the serious step of the issue of warrants of arrest...... Ministry of Law, Justice & Parl. Afrs. -VS- BLAST, [3 LM (AD) 274]

Section-54, 60, 61, 167 and 176- The police wide powers of arresting persons without warrant This section gives the police wide powers of arresting persons without warrant. It is however not a matter of caprice, limited only by the police officers' own view as to what persons they may arrest without warrant. Their powers are strictly defined by the Code, and being an encroachment on the liberty of the subject, an arrest purporting to be under the section would be illegal unless the circumstances specified in the various clauses of the section exist. Where a police officer purported to act under a warrant which was found to be invalid and there was nothing to show that he proceeded under this section and the arrest could not be supported under this section. .....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Section-54, 60, 61, 167 and 176-A police officer's power to arrest under this section is discretionary- A police officer's power to arrest under this section is discretionary and notwithstanding the existence of the conditions specified in the section, it may be desirable in the circumstances of the particular case to simply make a report to the Magistrate instead of arresting the suspected persons. ....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, (3 LM (AD) 274]

Section 54-Section 54 was included in the Code by the colonial rulers and this provision cannot co-exist with Part III of the Constitution. A police officer should not exercise his power of arrest on the basis of his whims and caprice merely saying that he has received information of his being involved in a cognizable offence. He is required to exercise his power depending upon the nature of the information, serious- ness of the offence and the circumstance unfurled not only in the complaint but also after investigation on the basis of information or complaint. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 54-In case of arresting of a female person in exercise of this power, the police officer shall make all efforts to keep a lady constable present. If it is not possible by securing the presence of a lady constable which might impede the course of arrest or investigation, the police officer for reasons to be recorded either before arrest or immediately after the arrest by assigning lawful reasons. Bangladesh. represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 54-In clause 'Firstly' of section 54 the words 'credible information" and 'reasonable suspicion' have been used relying upon which an arrest can be made by a police officer. These two expressions are so vague that there is chance for misuse of the power by a police officer, and a police officer while exercising such power, his satisfaction must be based upon definite facts and materials placed before him and basing upon which the officer must consider for himself before he takes any action. It will not be enough for him to arrest a person that there is likelihood of cognizable offence being committed, Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 54-Before arresting a person out of suspicion the police officer must carry out investigation on the basis of the facts and materials placed before him without unnecessary delay. If any police officer produces any suspected person in exercise of the powers conferred by this clause, the Magistrate is required to be watchful that the police officer has arrested the person following the directions and if the Magistrate finds that the police officer has abused his power, he shall at once release the accused person on bail. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Sections 54 and 59-If a person commits a cognizable offence in presence of a private person, the latter can arrest him under section 59 of the Code of Criminal Procedure. A police officer may also arrest a suspected person under section 54 of the Code if the circumstances mentioned in the section attract the case. In exercise of these powers, a police officer or a private person may arrest the offender mentioned above, not to speak of an officer of the Commis sion. Either one can hand over the offender to the nearest police station with the money and file a case. If the police find that the offence attracts the Durnity Daman Com- mission Ain, it would intimate the Com- mission for investigation by appointing an officer. If the permission of the Commis- sion for arresting a suspected offender is made mandatory, it would be not possible for an officer of the Commission or a police officer to arrest such offender who has committed an offence under the Money Laundering Protirodh Ain, 2012 an offence that may also attract the offence under section 27. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti- Corruption Commission, 70 DLR (AD) 109

Sections 54 and 167-That all the recommendations are not relevant under the changed circumstances. We formulate the responsibilities of the law enforcing agencies which are basic norms for them to be observed by them at all level. We also formulate guide lines to be followed by every member of law enforcing agencies in case of arrest and detention of a person out of suspicion who is or has been suspected to have involved in a cognizable offence. In order to ensure the observance of those guide lines we also direct the Magistrates, Tribunals, Courts and Judges who have power to take cognizance of an offence as a court of original jurisdiction. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 60 Section 60 of the Code states that a police-officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police-station..... Ministry of Law, Justice & Parl. Afrs. -VS- BLAST. [3 LM (AD) 274]

Section 61- Section 61 of the Code states that no police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Ministry of Law, Justice & Parl. Afrs. VS BLAST, [3 LM (AD) 274]

Sections 61 & 167—An accused cannot be detained in custody of the police for a longer period than under all the circumstances of the case is reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate.

In the instant case before us, no incriminating articles, e.g. currency notes, soiled notes or stamps were recovered within the first 24 hours of arrest pursuant to any information given by accused Farook Mahajan, and so it cannot be said with an equal degree of certainty that the unlawful detention of the prisoner without any order of remand beyond 24 hours had no effect on the confession made by him. Faruque Mahajan vs State 49 DLR 47.

Sections 61 and 167—Since some incriminating articles were recovered within 24 hours of the arrest, the High Court did not find any harmful effect of the illegal detention in violation of sections 61 and 167 of the Code on the confession made by the accused. Hasmat Ali vs State 53 DLR 169.

Sections 61 and 167—There is no evidence that the appellants were detained in police custody under an order of remand of any Magistrate and hence their such custody beyond 24 hours is unauthorised. Belal vs State 54 DLR 80.

Section 61-PW I being an officer of an elite force has violated the mandatory provision of law; after apprehending the accused without sending him to the local Police Station and lodging the FIR he confined the accused in his own custody illegally and thereafter produced him to the local Police Station after 27 hours which makes the prosecution case fatal. Dolon (Md) vs State, 64 DLR 501

Sections 61 and 167-While making an order under sub-section (2) the Magistrate must be satisfied with the requirements of sections 54 and 61 have been complied with otherwise the Magis- trate is not bound to forward the accused either in the judicial custody or in the police custody. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Sections 74 & 114(e)—Objection as to admissibility of evidence is to be taken at the first instance. In the instant case no such objection was raised against the Commissioner’s report in question which can also be relied upon as the same is an official document and was prepared in due course. Abdul Quader Chowdhury vs Sayedul Hoque 43 DLR 568.

Sections 87 & 88—The prerequisites for publication of a proclamation are the issuance of a warrant and abscondance of the accused so as to evade the execution of the warrant. Attachment under section 88 of the Code of the property, movable or immovable, belonging to the proclaimed person can be made after the order of proclamation issued under section 87. Maulana M A Mannan vs State 48 DLR 218.

Ss. 87 and 88-Indisputably he came up with the Writ Petition before the High Court Division and challenged the proceedings pending against him in the trial Court and secured an interim stay-order. So it cannot be said by any stretch of imagination that the accused-Ambassador was in the dark about the pendency of the case.  ATM Nazimullah Chowdhury Vs. State, 65 DLR (2013)-HCD-500.

Proclamation and attachment-Under Section 87 Cr.P.C. a Magistrate is competent to publish a written proclamation requiring the accused to appear before him within a specified time when he has reason to believe that the wanted person has absconded or is concealing himself to avoid the execution of the warrant. The prerequisites for the proclamation are the issuance of an warrant and the abscondence or concealment of the accused.

Attachment under section 88 Cr.P.C. of property belonging to the proclaimed person can be made only after the order of proclamation under section 87 Cr.P.C. has been duly made. Maulana M.A. Mannan and others Vs. The State, 15BLD(HCD)151

Sections 87, 88 & 339B(1)—Notice as to absconding accused—The notice with regard to the absconding accused was not published in two widely circulated newspapers, as required under section 339B(1) of the Code, rather, it was published in two dailies, namely, ‘Karatoa’ and ‘Nowab’, of which the latter was hardly known and was far from being widely circulated. Although the daily ‘Nowab’ cannot be regarded as having a wide circulation, the other daily has a wide circulation. Therefore, there is substantial compliance with the provisions of section 339B(1) of the Code since prior to such publication, the compliance with the provisions of sections 87 and 88 of the Code of Criminal Procedure is found to have been duly complied. State vs Hamidul 61 DLR 614.

Sections 87 & 88—There is a gulf of difference between absence and abscondance— absence is not abscondance. For holding that a person is an absconder something more has to be shown. Jobaida Rashid, wife of Khondaker Abdur Rashid vs State 49 DLR 189.

Sections 87 & 88—The trial Court without taking steps or ascertaining about the compliance of sections 87 and 88 of the Code directed publication of notice. On such facts it cannot be said that the accused was concealing himself from appearing in Court and publication of notice in news-paper and commencing the trial was in clear violation of the mandatory provision of law. So the case is sent back on remand for retrial giving opportunity to the petitioner for cross-examining the PWs already examined. Balayet Howlader vs State 49 DLR 520.

Sections 87 and 88-From a careful reading of the provisions of sub-section (6) of section 27 of the Act it appears that the lawmakers have consciously excluded the use of the provisions of sections 87 and 88 of the Code in respect of trial under the Special Powers Act. Sirajul Islam vs State 55 DLR 536.

Sections 87, 88 and 339B—For compelling an absconder accused to be brought to trial coercive power under sections 87 and 88 could be used—Section 339B added to the Code to provide for trial in absentia. This trial in absentia, needs to be held only when all attempts had failed to bring the offender to trial and not just as a matter of course of only, on police showing them in the chalan to be absconders. Lal Mia vs State 42 DLR 15

Sections 87, 339B and 537—The expression ‘in at least one news-paper’ occurring in section 339B CrPC is mandatory and, in this view of the matter, the learned Sessions Judge ought to have condoned the delay and should not have dismissed the appeal summarily without deciding the same on merit. The order passed by the learned Sessions Judge on 19-11-1986 dismissing the appeal summarily on the ground of limitation is set aside. Moktar Ahmed vs Haji FaridAlam 42 DLR 162.

Sections 87 and 88-Indisputably he came up with the Writ Petition before the High Court Division and challenged the proceedings pending against him in the trial Court and secured an interim stay- order. So it cannot be said by any stretch of imagination that the accused-Ambassador was in the dark about the pendency of the case ATM Nazimullah Chowdhury vs State, 65 DLR 500

Ss. 93, 31(A) and 290-An Assistant Judge deemed to be an Additional Sessions Judge-its legal incidences. An Assistant Sessions Judge under the proviso to Sub-section (3) of section 9 of the Code of Criminal Procedure has the power to pass higher sentences except the sentence of death in those Sessions cases which were not higher to triable by him but which are now triable by him by deeming and treating him as an Additional Sessions Judge by virtue of the change brought in section 290 and introduction of section 31l (A) of the Code. An Assistant Sessions Judge shall be deemed to an Additional Sessions Judge for this limited purpose only. He has no power to hear appeals, revision, references and reviews. Tajul Islam and others Vs. Mr. Billal Hossain (Criminal), 2ALR (2013)-AD-205.

Section 94—A Court or an officer-in-charge of a police station may issue summons or a written order to the person in whose possession or power such document or thing is believed to be there, for investigation, requiring him to attend and produce it at the time or place stated in the summons or order. Abdus Satter Bhuiyan vs Deputy Commissioner, Dhaka 42 DLR 151.

Section 94—Section 94 CrPC speaks of production of any document or other thing but not of seizure by any police officer from any bank relating to bank’s account. The Sessions Judge acted illegally in passing the order according permission to seize the record from the bank’s custody. Arab Bangladesh Bank Ltd vs Md Shahiduzzaman 51 DLR 14.

Sections 94, 155 & 156—The combined effect of the provisions of sections 94, 155 and 165 is that without an order of a competent Magistrate a police officer cannot investigate a non-cognizable case; and even if he is authorised, he has to observe the formalities as laid down in sections 94 and 165 of the Code before he can compel the production of any document or seize any incriminating article. Humayun Majid vs Bangladesh Bureau ofAnti-Corruption 54 DLR 12.

Sections 94 and 160—The contention that action of notice by the respondent No. 3 was violative of Article 35(4) of the Constitution is of no substance since the same were issued in connection with an enquiry as regards the information received against the petitioners. The petitioners are not accused of any offence and, as such, protection under Article 35(4) is not available to them. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.

S. 94-During the course of "enquiry" by the Commission section 94 of the Code and sections 5 and 6 of the Bankers Book Evidence Act have no manner of application. Sonali Jute Mills Ltd. Vs. Anti-Corruption Commission (Spl. Original), 18 BLC (2013)-HCD-723.

S. 94(1)(b)-The Court has power to call for any paper or document in possession of any person, including Banking institutions, for its production before it, which s considered necessary for a proper trial of the case before it. The Court has also e power to summon any person to appear before it and to depose in the case. When his evidence is considered necessary for a proper trial and that in the interest of justice.

In the instant case the production of the relevant bank document is vitally necessary for proof of the complainant's case and as such the learned Magistrate was not at all justified in refusing to call for the necessary Bank document and refusing to summon the local Sonali Bank Manager as a witness in the case. The learned Magistrate is directed to cause production of the necessary band papers for the purpose of the trial by following the provisions of the Bankers, Books Evidence Act, 1891. Juboraj Goula Vs. The State (Criminal), 2 ALR (2013)-HCD-175

Production of document

Section 94(1) of the Code speaks of production of document or thing in the posses- sion or in the power of the persons to whom the summons or the order is issued. The words 'production' and 'possession' clearly indicate that what is to be produced must be a tangible thing. So far as the word 'document' is concerned section 3(16) of the Act defines that 'document' shall include any matter written, expressed or described upon any sub- stance by means of letters, figures or marks or by more than one of those which is intended to be used, or which may be used, for the purpose of recording the matter.

In the instant case the impugned order Annexure-B asked the petitioner under section 94 of the Code of Criminal Procedure and Articles 31 and 50 of the Anti-corruption Manual to provide of the names of all the cases which he handled from 1.3.93 to 20.3.94 and the position of those cases. Such information as asked for does not constitute a document. Mohammad Imtiazur Rahman Farooqui Vs. Bureau of Anti-Corruption, 19BLD (HCD)382

Ref: 42 DLR (HCD) 43; 49 DLR(HCD) 599 Cited

Sections 94 and 160-The officers of the Anti-Corruption Bureau in connection with investigation of a complaint to ascertain the truth thereof are authorised to issue notice under section 160 CrPC. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.

Sections 94 & 160-No police officer can ask any person to attend or to appear before him and no person is required to attend a police officer merely because he is ordered or required verbally or in writing unless his attendance is so required in connection with investigation of a criminal case or any proceeding. M Mohsin Hossain vs Government of the People’s Republic of Bangladesh 55 DLR 56.

Section 94—As section 94 of the Code does not contemplate seizure of any document from the custody of a bank or a banker as defined in the Bankers’ Books Evidence Act, the question of seizure of the bank accounts of Muon and Abdul Momin Tulu by the concerned officers of the defunct Bureau of Anti-Corruption does not arise at all. Tofail Ahmed vs Chairman, Anti-Corruption Commission 62 DLR 33.

Sections 94 & 160—The authority of the Anti-Corruption Officer requiring the petitioners to attend and give statements before him in the interest of an inquiry under the provisions of section 94 of the Code cannot be questioned. Abdul Hafiz vs Director General, Bureau of Anti-Corruption, Bangladesh 51 DLR 72.

Section 94(1)—The information asked for by the impugned order from the petitioner is not something which is capable of being searched. Therefore the information asked for does not conform to section 94 of the Code. The impugned order purported under section 94 of the Code and Articles 31/50 of the Anti-Corruption Manual is unauthorised and illegal as they do not confer any power to direct a person to give information.

The information asked for the purpose of inquiry was of a roving nature and was merely fishing for information. If we are to believe that the inquiry was in response to the information received by the anonymous letter then the wholesale information of all cases handled by the petitioner from 1393 to 20394 cannot be said to be connected with the alleged remittance of the sale proceeds of the house at Motijheel and Guishan. The asking for such wholesale information of the cases handled by him for that period appears to us to be malafide, fishing for information only to harass the petitioner. Imtiazur Rahman Farooqui (Md) (MI Farooqui) vs Bureau ofAnti-Corruption 51 DLR 421.

Section 94(1)—The inquiry stage of an offence, the provisions of Clause (a) to the Proviso to sub-section (1) of section 94 of the Code cannot be called in aid and the same are only meant for the purpose of investigating offences under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477A (both inclusive) of the Penal Code, with the prior permission in writing of the Sessions Judge concerned. Tofail Ahmed vs Chairman, Anti- Corruption Commission 62 DLR 33.

Section 94(1)(a)—The applicability of Clause (a) to the Proviso to sub-section (1) of section 94 of the Code to the investigation of an offence under any of the sections of the Penal Code has not been brushed aside by the Appellate Division in the case reported in 1996 BLD (AD) 200 = 2 BLC (AD) 78. Tofail Ahmed vs Chairman, Anti-Corruption Commission 62 DLR 33.

Section 94- Before the seizure and search of documents and other things in respect of certain offences, prior permis sion of the Sessions Judge is necessary and in some cases, the permission of the High Court Division is necessary. By reason of this prohibition, the investigation officer can not ask any financial institution within the meaning of Bank Companies Act to show particulars of bank accounts being maintained by its customers for the purpose of inquiry or investigation in respect of offences under the Money Laundaring Protirod Ain and other specified offences. It is only with the permission of the Sessions Judge, this can be done. Anri- Corruption Commission, Dhaka vs Abdul Azim, 69 DLR (AD) 208

Section 94-Naturally, whenever the Commission gets information regarding the commission of an offence by any person which requires production and/or inspection of a document which is in custody of a bank or banker as defined in the Bankers' Books Evidence Act and relates to disclosing of any information of bank account of any person, prior permission to the Sessions Judge is necessary. The Session Judge in such eases passes an order in his administrative capacity because no proceeding has yet commenced. Under such circumstances, on perusal of the report of the investigation officer in which he has disclosed the purpose for seizure of the documents in question, if the Sessions Judge is satisfied that the seizure of document or the inspection of the bank documents relating to handling of the account is necessary for the purpose of ascertaining the truth or falsehood to the in formation, he accords. the permission. Anti-Corruption Commis- sion, Dhaka vs Abdul Azim, 69 DLR (AD) 208

Section 94- Obviously those documents were related to the proceedings pending there but the same, as it patently appears, are not at all indispensable and basic for determining criminal liability of the petitioner in the proceedings going on in our own court of law. Essence of Court's order also demonstrates it, and thus, it does not suffer from any illegality. Moudud Ahmed vs State, 69 DLR 428

Section 96—The submission that by search and seizure no fundamental right of the petitioner is violated is misconceived on the facts of the instant case. Government of Bangladesh vs Husssain MohammadErshad 52 DLR (AD) 162.

Section 96(1)(3)—Appeals disposed of on a petition of compromise—High Court Division later vacated the order and restored the two appeals on the allegation of the respondents that the petition of compromise was forged and collusively created.

On a petition of compromise the two appeals were disposed of by the High Court Division on 17th May, 1983 in terms contained in that petition. The respondents filed an application for the restoration of those appeals on the ground that the petition of compromise was created collusively and it was a forged document. The High Court Division vacated the order dated 17th May, 1983 and restored the two appeals to their file and number by an order dated 6th April, 1986. This Court refused on 31st August, 1986 to interfere with that order. Abdul Gafur vs State 41 DLR (AD) 127.

Section 98—Provision of section 98 is applicable only when the magistrate is satisfied that the place to be searched is used for deposit or sale of stolen property. Qari Habibullah Belali vs Captain Anwarul Azim 40 DLR 295.

Section 98—Even if the facts disclosed in the complaint are true and the properties of the complainant are wrongfully retained, recovery of such goods by issuing search warrant is not at all contemplated under section 98 of the Code. Saiduzzaman vs Munira Mostafa 56 DLR 274.

Section 99A—Forfeiture Notice—Forfeiture of a book is a preventive provision so that the author or the publisher of the book does not continue to commit the offence. Under the scheme of law forfeiture is provided and the remedy against the forfeiture having been provided under section 99B of the Code, the Government was not required to issue any notice to the author or publisher of the book giving him opportunity of being heard before passing the impugned order. Sadaruddin Ahmed Chisty vs Bangladesh 48 DLR 39.

Forfeiture of Publication of the Government to forfeit publications and power of the High Court Division to set aside order of forfeiture

The order of forfeiture is essentially a preventive action so that the author or the publisher of the disputed book does not continue to commit the offence of outraging the religious feelings of any class of citizens and as such no show cause notice is necessary before passing the order of forfeiture. The objective satisfaction of the Government gives the order of forfeiture the sanction of legality which is only subject to judicial review-Code of Criminal Procedure, 1898 (V) of 1898) Sections. 99A and 99B

Dr. (Homeo) Baba Jahangir Beiman-al- Shureswari Vs. The State, 16BLD(HCD140

Section 99A(1)(c)—To forfeit a publication the government is only required to state by notification in the official Gazette the grounds of its opinion, not its satisfaction for formation of opinion. Sadaruddin Ahmed Chisry vs Bangladesh 50 DLR (AD) 119.

Section 99A—Forfeiture of book— Government is not required to issue notice—The provision may be invoked when the writing and publishing of a book constituted a penal offence. The order of forfeiture is a preventive action requiring no notice to the author or the publisher to give them opportunity of being heard. Bangladesh Anjuman-e-Ahmadiyya vs Bangladesh 45 DLR 185.

Section 100-From a reading of the provisions of law, it is clear that the Metro- politan Magistrate or Magistrate, Ist class or an executive Magistrate is empowered to pass an order of search warrant, if there is any reason to believe that any person is confined. Firozul Islam vs State, 70 DLR 744

Sections 100 & 552—A Magistrate cannot detain a person unless he or she is an accused in a criminal case. The petitioner being above 16 cannot be a minor within the meaning of section 361 Penal Code and as such, the Magistrate has no jurisdiction to keep her in custody or to deliver her to the custody of her father. Fatema Begum @ Urmila Rani vs Gageswar Nath and State 46 DLR 561.

S. 101-Held: In view of the facts and circumstances of the case I have the reason to inclined such a view that it is settled in our Court that to every adult person the law assigns a domicile which is called the domicile of origin and which remains attached to him until a new and different domicile takes its place. There is absolutely nothing on the record to show that the accused respondent ever became an Indian citizen in substitution of his domicile of origin. Therefore, the domicile of origin remains attached to him. Relied on 32 DLR (HCD)-160. Jnanendra Nath Barai Vs. Govt. of Bangladesh & Ors, 21 BLT (2013)-HCD-03.

Section 103—Applicability of the provision relating to search—For the purpose of conducting search in order to find out as to whether a person is guilty of an offence under section 46 of the Excise Act the provision of section 103 CrPC has no application. Dilip Kumar Ghose vs State 42 DLR 464.

Section 103—Procedure of search— Applicability—The fulfillment of the provision under section 103 CrPC is not required, because the pipe-gun was not recovered by the police on search but it was produced by the accused himself. Abdul Hashem Master vs State 44 DLR 159.

S. 103-Allegation under section 156(89) of the Customs Act read with section 25B(1)(Kha) of the Special Powers Act, 1974. The provision of section 103 of the Code of Criminal Procedure provides that at list two respectable witnesses of the locality must be present at the time of search and seizure. Whereas it is admitted by the P.W.1,2 that there is no local witness who saw the fact of recovery of those articles which alleged to have been recovered from the exclusive possession of the convict-appellant. Thus, the fact of search and seizure was not held as per aforesaid provision of the law. Hence, the fact of search and seizure appears to be vitiated by initial inherent infirmities. Md. Mostafa Jaman Vs. The State, 21 BLT (2013)-HCD-476.

Section 103-Search—The provisions for search to be made in presence of witnesses are designed to create a safeguard against possible chicanery and a concoction on the part of the Investigating Officer and it is obligatory for him to ensure that the search was conducted honestly. Subodh Ranjan vs State 45 DLR 521.

Section 103—Prosecution cannot be disbelieved merely because of the fact that the seizure list witnesses stated that the arms were not recovered in their presence.

Now, the question is whether in a case like this, evidence of the informant and the Investigating Officer can be disbelieved or not. Here, we have found that there is no suggestion from the side of the defence that the informant and the Investigating Officer PW 13 had any enmity with or grudge against the accused persons for which they were falsely implicated in this case. The only suggestion given to the prosecution witness is that the accused persons were falsely implicated by the informant for his personal gain in his service. Rana Madbar vs State 51 DLR 499

Section 103—The Court should not take too rigid a view regarding the provisions of section 103 of the Code. In the absence of any cogent reason to disbelieve the members of law enforcing agency, the Court is competent to convict the accused relying on their testimony without being corroborated by the local seizure list witnesses. Kashem vs State 54 DLR 212.

Section 103—Search for and seizure of incriminating articles without strictly complying with the requirement of section 103 of the Code of Criminal Procedure cannot be held legal. This principle of law is applicable in the instant case. A Wahab vs State 60 DLR 34.

Section 103—There is no legal bar to convict and sentence the accused under Arms Act mainly on the evidence of Police personnel if there appears no falsehood in their evidence. We do not find any bar to convict the accused Mohiuddin on the basis of unimpeachable evidence of the Police witnesses who made the search and seizure. This view finds support in the case of Nurul Islam vs State report in 1988 BLD 106. Mohin Uddin vs State 61 DLR 35.

Code of Criminal Procedure (V of 1898)  

Section 103

When search would be made under Chapter VII of the Code compliance of provisions of section 103 is not mandatory regarding search and seizure under special law....(56) [73 DLR 36]

Code of Criminal Procedure (V of 1898) 

Section 103

While the search is to be made for the purpose of recovery of documents or any other movable property or for the discovery of any person wrongfully confined, section 103 shall be applied.  [73 DLR 37]

Code of Criminal Procedure (V of 1898) 

Section 103

Provisions of section 103 of the Code shall strictly be applied only when search is made under Chapter VII of the Code and provisions of this section are not applicable when search and seizure are made in connection with the offences under special law like the Ain, মাদকদ্রব্য নিয়ন্ত্রণ আইন,  ১৯৯০, as such, we do not find any illegality regarding modus operandi of search and seizure applied in this case.......(57)  [73 DLR 37]

Section 103—There is no legal bar to convict the accused under Special Power Act mainly on the evidence of police personnel if there appears no falsehood in their evidence. Thus there is no bar to convict the accused Yunus Ali and Shawkat on the basis of unimpeachable evidence of the police witnesses who made the search and prepared the seizure list. Yunus Ali vs State 61 DLR 793.

Section 103-If a person makes a confessional statement to a police officer which led to the discovery of the article or leads the police to the place where it is lying, and the police officer seizes contraband article on compliance of procedures contained in section 103 of the Code, and if such officer proves to the satisfaction of the Court the seizure of the article and the prosecution examines the attesting seizure list witnesses in Court, and proves their signatures in the seizure list, whether or not the attesting seizure list witnesses support the prosecution case, the Court may infer a presumption in favour of the prosecution that the police officer or other officer conducting the search and seizure has acted in an official capacity, that the act of the officer in seizing the articles has been done regularly in discharge of his public duties and that the attesting seizure list witnesses are making obliging statements for fear of reprisal. Rabiya Khatun vs State 58 DLR 458.

Section 103—Now it is time to review the criminal law, at least to amend section 103 of the Code of Criminal Procedure, 1898, to review the principle that burden of proof never shifts in criminal cases, specially in the cases of corruption, offences against sexual violence, murder of women and children, trafficking in arms, drug, narcotics, women and children. Nasir vs State 62 DLR 49.

Sections 103 & 165—Since the arms were recovered at the instance of the accused, no search was necessary, invoking the application of the provisions provided in law for carrying out a search. No question of following the provisions of sections 103 and 165 of the Criminal Procedure Code and section 25 of the Arms Act therefore arises. Kamruzzaman vs State 47 DLR 416.

Section 103(1)—Search was done on 24-1-2007 whereas the seizure list was made on 31-1-2007 after seven days of the search which clearly proves that the action of the respondent is a malafide which is clear misuse of power and the same should be interfered with by this Court. Insab Au vs Magistrate, Abu Zafar, Jessore 63 DLR 290.

Section 103(1) & (2)—The provision relating to search and seizure provided in subsections (1) and (2) of section 103 of the Code of Criminal procedure are mandatory and any search and seizure without strictly complying with the aforesaid provisions must be deemed to be illegal. Habibur Rahman alias Jane Alam vs State 47 DLR 323.

Section 103- 

If the seizure list witnesses do not corroborate the police officers, and the tribunal is satisfied that the seizure of the contraband goods has been made following the procedures prescribed in section 103 of the Code of Criminal Procedure, a conviction can be given relying upon them. The conviction of the accused person in such circumstances cannot be said to be illegal. .....Md. Akram=VS The State, [1 LM (AD) 581]

Section 107—Conspiracy—Its meaning— This word is not defined in the Ain, 1995. The ordinary meaning of the word abetment and also the definition thereof in section 107 of the Penal Code can be taken as a guideline, according to which abetment includes conspiracy or instigation, and also aid to an illegal act or omission. State vs Shahidul Islam alias Shahid 58 DLR 545

Sections 120A and 535-Even if no formal charge is framed or there is omission to frame a charge unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction in view of section 535 of the Code. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Section 120A-The criminal cons- piracy doctrine only require overlapping chains of agreement that link the physical perpetrator to the accused. However, the lack of a direct agreement between the defendant and the physical perpetrator is no bar to applying the conspiracy doctrine as long as the chain of overlapping agree ments connects them. Salina Islam Beauty vs State, 68 DLR 59

Section 144—Status quo is not contemplated in a proceeding under section 144 CrPC. Nazibul Islam vs Dr Amanullah 40 DLR 94.

Section 144—A Magistrate has no jurisdiction under section 144 CrPC to issue notice upon the parties to file written statement before him showing cause by a certain date. Nazibul Islam vs Dr Amanullah 40 DLR 94.

Sections 144 and 145(4)-The instant case is not one of conversion from section 144 to 145 CrPC. By the impugned order the application under section 144 CrPC was disposed of and a proceeding was drawn under section 145 CrPC being satisfied as to the apprehension of serious breach of peace. Nazibul Islam vs Dr Amanullah & the State 40 DLR 94.

Section 144

Plaintiffs constrained to institute the in- stant suit for declaration of title and re- covery of khas possession ...(2) It appears form the record that the trial Court discussed the evidence on record and the documents and also perused the documents and exhibits and also consid- ered the material on record and made its clear observation and on the other hand the Court of Appeal below without ap- plying its judicial mind and without. Mo- hizuddin vs. Abdul Latif (Mohammad Fazlul Karim J) (Civil) 10 ADC 964

The Code of Criminal Procedure

Section 144, 145

Proceeding under section 144 of the Code of Criminal Procedure was started but later on same was converted into a proceeding under section 145 of the Code of Criminal Procedure and the properties of the aforementioned three schedules were attached and manage- ment thereof was given to the receiver appointed by the Court. Mosharraf Hossain Chowdhury vs. Md. Jahurul Islam Chowdhury (Md. Ruhul Amin J) (Civil) 6 ADC 631

Sections 144 and 145-Though an aggrieved party is at liberty to approach the Court of District Magistrate at any point of time invoking the jurisdiction of the District Magistrate under section 144 or 145 of the CrPC during pendency of a civil suit in which no order as to possession of the disputed property has been passed by the civil ourt, it is incumbent upon the Magistrate to inquire into the fact as to whether there is any civil suit pending over the same property and once the Magistrate comes to know about the pendency of the civil suit regarding the disputed property, his first duty is to direct the aggrieved party to obtain an injunction from the civil Court; if it appears to the Magistrate that the situation is so risky that an incident of breaching the peace in the area is likely to occur, the Magistrate then becomes competent to pass necessary order/s under section 144/145 of the Code. Amin Ahmed vs State, 69 DLR 268

Sections 144 and 145-Once the Magistrate decides to pass any order the same must contain the directions upon the parties to prove their respective claims by filing written statements within a fixed time either in person or through their pleaders. The Magistrate, thereafter, upon perusing their statements, hearing the parties and considering the evidence, would come to a decision on the possession of the property with a finding as to whether any or which of the parties was in possession. If it is surfaced that any party was dispossessed within any date of last two months from the date of preliminary order, then the dispossessed party may be restored to its possession upon declaring the said party to be the lawful possessor of the property until evicted therefrom by the order of a competent Court. Amin Ahmed vs State, 69 DLR 268

Section 145/144-No receiver can be appointed of the disputed property unless the proceedings under section 144 of the Code are converted into one under section 145 of the Code. Provat Mondal vs State, 64 DLR 182

Section 145-Object of section 145 is the prevention of incidents likely to arise out of the disputes over possession of an immovable property resulting in breach of peace. The concerned Magistrate, upon coming to know through police report or otherwise as to the likelihood of breach of peace over a land regarding its actual possession, must satisfy himself about the alleged likelihood of breach of peace. In order to be satisfied, the Magistrate should minutely examine the police report or information received through other source. After judiciously considering the police report or other information if the Magistrate is satisfied that there exists a circumstance which is risky for the contending parties and people in general, then it becomes a bounden duty for the Magistrate to make a written order in view of the employment of the word "shall". This is popularly known as preliminary order. This preliminary order must contain the reasons of the Magistrate's satisfaction, the nature of the order; meaning that whether the Magistrate is going to merely ask the contending parties for hearing on the alleged disputes or whether the order is going to be passed in the form of injunction for maintaining peace on the disputed land upon attaching the property by appointing a receiver. Amin Ahmed vs State, 69 DLR 268

Section 145-A proceeding under section 145 CrPC is not a criminal matter. As to proceedings under section 145 CrPC it is erroneous to designate the complainant as an informant, having regard to the provisions of that section. Once an information is brought to the notice of the Magistrate he has to be satisfied that a dispute as to immovable property is likely to cause a breach of the peace. Further proceedings which he starts are not proceedings in the interest of any private party but in the interest of public peace. (See Babu vs Shyam, ILR 1950 All 543). It is, therefore, highly doubtful if a proceeding under section 145 CrPC can properly be termed as a “criminal matter”. Jobeda Khatun vs Momtoz Begum 45 DLR (AD) 31.

Section 145—The jurisdiction of the Magistrate under section 145 CrPC is ousted when the civil Court is seized with the subject matter of dispute. Jobeda Khatun vs Momtaz Begum 45 DLR (AD) 31.

Section 145—Bid money—When it cannot be forfeited—Receiver appointed by the Magistrate being an agent of the Court can attach any condition to the auction held for leasing out the attached property. But in the absence of any such condition attached by him or the Magistrate the part of the bid money deposited cannot be forfeited on the bidder’s failure to deposit the balance money, though the bid can be cancelled and fresh auction held. Amir Hossain Farhad vs DrA Mannan 44 DLR 401.

Section 145—Under section 145 CrPC the Court deals with the limited scope of finding possession. Haji Golam Hossain vs Abdur Rahman Munshi. 40 DLR (AD) 196.

Section 145—A Magistrate making an inquiry under section 145 CrPC is to decide the fact of ‘actual possession’ without reference to the merits or the claims of any of the parties of a right to possess the subject of dispute. Aminul Islam vs Mujibar Rahman 44 DLR (AD) 56.

Section 145-Jurisdiction of Magistrate acting under sub-section (1) does not cease until and unless the proceeding is either cancelled under sub-section (5) or is finally disposed of under sub-section (6).

Exercise of power under sub-section (5) not dependent upon the result of inquiry under sub section (4).

The jurisdiction once validly acquired by the Magistrate acting under sub-section (1) of section 145 of the Code of Criminal Procedure does not cease until and unless the said proceeding drawn under sub-section (1) is cancelled under subsection (5) or the subject-matter of the proceeding is finally disposed of under sub-section (6) declaring a party to be entitled to possession thereof. At any stage of the proceeding the Magistrate may come to the conclusion that there is no longer any case for continuing the inquiry.

The exercise of power under sub-section (5) is not dependent upon the result of inquiry under sub-section (4). Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 145-Right to show that no dispute exists or existed—in moving for cancellation for preliminary order a party has liberty to produce evidence—What is evidence depends upon the facts and circumstances of each case—Single piece of paper may prove to the satisfaction of the magistrate that a dispute exists or existed or that there is no apprehension of breach of peace. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 145—The High Court Division should not interfere with the finding of possession passed by the Magistrate on proper evidence unless the finding is perverse. Soleman vs Ahbarek Khalfa 46 DLR 298.

Section 145-Court’s concern in a proceeding under this section—The basic condition for a proceeding under section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc, between the rival claimants. The concern of the Court in such a proceeding will therefore be the factum of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights. Abdul Jabbar vs Azizul Haque 46 DLR 416.

Section 145—A Magistrate’s satisfaction while exercising jurisdiction under this section cannot be presumed extrinsic to his order, it must be gathered from the express statements made in the order. Abdul Quddus vs State and Md Mobarak Hossain Ratan 47 DLR 506.

Section 145—Filing of case under section 145 of the Code of Criminal Procedure during pendency of a civil suit between the same parties cannot be said to be proper.

A party to a civil suit, if threatened in his possession, can seek remedy from the civil Court and should not seek such remedy from a criminal Court as civil Court if final arbiter of land disputes. Serajul Islam vs Faziul Haque 47 DLR 480.

Section 145—Dispute of ownership was beyond the scope of determination in a proceeding under section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.

Section 145—It is the dispute relating to possession that was for a Magistrate to consider in a proceeding under section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.

Section 145—Since appellate Court is in seisin of the matter after a decree of the Court in favour of 2nd party the Magistrate’s power under section 145 CrPC is not available. Abdur Rahman Sikder (Md) vs Nur Mohammad Khan. 57 DLR 239.

Sections 145—In a proceedings under section 145 of the Code the Magistrate is required to decide which of the contending parties was in possession of the disputed property on the date of drawing up of the proceedings or whether two months next before such date on the basis of evidence of possession and not to decide which of the parties has lawful claim of possession therein on the basis of document of title. Shebait Mohanta Sree Kedar Nath Achari vs Sree Khitish Chandra Bhattacharya 52 DLR 176.

Sections 145, 439A and 537—Though the Sessions Judge prematurely intervened, he has passed the order correctly and legally and any irregularity as pointed out is curable by the provisions in section 537 CrPC. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.

Sections 145, 439A and 561A—The revisional jurisdiction at the instance of the second party respondents under section 561A of the Code of Criminal Procedure does not lie as it is a device of invoking a second revision under the garb of an application under section 561A of the Code of Criminal Procedure which is not maintainable. Shamsuddin alias Shamsuddoha vs Mvi Amjad All 56 DLR (AD) 59.

Sections 145 & 146—Dispute as to possession of land—Attachment to continue until civil Court’s decision on title—The parties are litigating their title, as also possession in a Title Suit. It is for them to raise all the questions therein. All comments, observations and findings of the Magistrate in the proceedings under section 145 CrPC and of the High Court Division while disposing of the application under section 561A CrPC with regard to the title and possession of the disputed property (the subject matter of the proceeding under section 145 CrPC) will be ignored by the civil Court while deciding the title suit. It will be fit and proper, in the facts and circumstances of the case, to keep the Magistrate’s order directing the receiver to hand over possession of the case land to the 1st party of section 145 proceeding in abeyance for .the present and it is so ordered. It is further ordered that pending disposal of the title suit the disputed land will remain under attachment and the 1st party is to hand over possession thereof to the receiver. On receipt of judgment in the title suit, the Magistrate shall dispose of the proceeding before him in conformity with the decision of the civil Court. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.

Sections 145 & 146—Sections 145 and 146 of the Code of Criminal Procedure should be read together as they provide a composite provision to meet a situation as aforesaid. The scheme is that once a proceeding has begun with preliminary order it must be followed by attachment of the property, appointment of a receiver and final determination of right and title by the civil Court.

Unfortunately this aspect of the case was not taken into consideration by the Revisional Court which has resulted in failure of justice. The Courts below have travelled beyond their jurisdiction in finding title of the parties which is not their business but the business of the civil Court. The impugned order accordingly needs to be modified by way of keeping properties in custody of the receiver till such time as the parties decide their respective title in a civil Court in accordance with section 146 of the Code of Criminal Procedure. Abdul Jabbar vs Azizul Haque 46 DLR 416.

Sections 145 & 146—When the receiver is a police officer he could not be dispossessed from the disputed property since he has authority to arrest anyone and send him to jail and also prosecute him for committing a cognizable offence or for violating law and order. Abdul Karim vs Gousddin 51 DLR 259.

Sections 145 & 146-The Magistrate is duty bound as the custodian of the disputed property to take over possession of the same from the 2nd party who is bound by the decree of the civil Court and to make over the same to the first partv. Abdul Karim vs Gousddin 51 DLR 259.

Sections 145 and 146-The Criminal Court exercising the limited summary jurisdiction could regulate the possession of the disputed property. On the failure of the learned Magistrate to ascertain factum of possession in favour of either party direct the parties under section 146 of the Code of Criminal Procedure to go to the Court of competent civil jurisdiction. Shamsuddin vs Mvi AmjadAli 56 DLR (AD) 59.

Sections 145 & 146—Order under section 146 could have been passed only after being satisfied on evidence in the proceeding under section 145 of the Code of Criminal Procedure that neither party could prove his possession in the subject matter of the proceeding and therefore the order passed by the learned magistrate was misconceived and beyond the authority under section 146 of the Code of Criminal Procedure. Bangladesh Co-operative Book Society Ltd vs Md Dastagirul Huq 61 DLR (AD) 62.

As to proceedings under section 145. Cr.P.C. it is erroneous to designate the complainant as an informant having regard to the provisions of that section: Once an information is brought to the notice of the Magistrate, he has to be satisfied that there a dispute as to immovable property and there is likelihood of exists a breach of peace. Further proceedings which he states are not proceedings in the interest of any private party but in the interest of public peace. It is highly doubtful if a proceeding u/s 145 Cr.P.C can properly be termed as a 'criminal matter within the meaning of section 56(e) of the Specific Relief Act. Jobeda Khatun Vs. Momtaz Begum and others 13 BLD (AD) 31

Ref: AIR. 1924(Nag. )80; 23 DLR(SC)14; 36 DLR.(AD)44; In re; N.P. EssappaChettiar, AIR 1942 (Mad) 756; A.LR. 1924(Cal.) 334; AIR 1928 (Cal)464; ILR 1950All 543; AIR 1959(SC)960; (1909) 21 C 266; AIR 1938 (Pat) 606; 1970 UJ (SC) 75; Twenty one year's Supreme Court Digest, 1950-70 by Sk. Agarwal, volume 2(1972) at page 662-Cited

Sections 145 and 146(1)—The purpose of the proceeding under section 145 CrPC is to find out the possession of the property. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.

Sections 145 and 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the information was in fact the First Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be related as one under section 161 CrPC. Shahjahan vs State 46 DLR 575.

Sections 145 and 561A—As the order of the Civil Court was passed earlier there could not be any proceeding under section 145 of the Code of Criminal Procedure in respect of that property. Abdul Alim vs State 53 DLR (AD) 64.

Sections 145 and 561A—As the order of the civil court was passed earlier regarding possession of the property, there cannot be any proceeding under section 145 of the Code of Criminal Procedure in respect of the same property. Abdul Alim vs State 52 DLR 616.

Sections 145 and 164—A statement of witness is not legally acceptable evidence to prove or disprove any accusation, particularly when the witness herself is available in the court to depose about the occurrence. Alam vs State 54 DLR 298.

Sections 145 & 561A––Though two civil suits, instituted before the drawing up of the proceeding under section 145 CrPC, are pending, the civil Court has not passed any order regulating possession of the case land, nor a decree for possession or permanent injunction has been granted. In this view of the matter, the jurisdiction of the Magistrate to act under section 145 CrPC is not ousted. Mozaffar Ahmed vs State 49 DLR 485.

Sections 145 & 561A—When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under section 145 CrPC. Abul Bashar vs Hasanuddin Ahmed 51 DLR (AD) 14.

Sections 145 & 561A—When the Civil Court is already seized with the question of regulating possession of the land between the same parties the Magistrate acted without jurisdiction in initiating the proceeding under section 145 CrPC. Abdul Majid Mondal vs State 51 DLR 287.

Section 145(1)—Grounds of satisfaction not stated in the preliminary order—Additional Sessions Judge could inquire whether there were materials on record for such satisfaction and come to a conclusion that the same was not based on materials. Moslem uddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 145(1)(5)—Subjective satisfaction in passing order under sub-section (1) but not when moved under sub-section 5.

When a Magistrate passes a preliminary order under sub-section (1), he has to exercise a subjective satisfaction with regard to the apprehension of breach of peace. But when he decides to cancel or not to cancel the preliminary order on being moved under sub-section (5), his satisfaction is no longer subjective.

Decision under sub-section (5) is subject to scrutiny on a wider ground than in an order under sub-section (1). This subsequent decision under sub-section (5) is subject to scrutiny by the revisional Court on a wider ground than the Magistrate’s order passed under sub-section (1). Order under sub-section (5) based on objective satisfaction—open to wider challenge on revision. But an order passed under sub-section (5) is based on objective satisfaction and it is open to wider challenge before the revisional Court. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 145(4) & 561A—When an order of attachment and appointment of receiver was legally made by the Magistrate to prevent serious apprehension of immediate breach of peace, such order is to be restored by setting aside the order of Sessions Judge who illegally set aside the order of the Magistrate in exercise of inherent jurisdiction of High Court Division for securing ends of justice. Alauddin vs State 58 DLR 364.

Section 145(4)—Power in section (4) of section 145 CrPC is an extraordinary power to be exercised in a case of emergency and should not be resorted to as a matter of routine—No apprehension of breach of peace and parties being in joint possession, the order is to be vacated. Gura Miah vs Fazar Ali 42 DLR 70.

Section 145(4)—Before passing any order under sub-section (4) the Court is required to enquire as regards the fact of actual possession of evidence to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex fade the order must be held to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex facie the order must be held to be illegal as in the instant case. Abdul Quddus vs State and Md Mobarak Hussain Ratan 47 DLR 506.

Section 145(5)—Magistrate came to the conclusion that there is apprehension of breach of peace on the basis of a certain material—In revisional jurisdiction a different view may be taken. The Chief Metropolitan Magistrate by his order dated 12-4-87 came to the conclusion that the posting of Ansars is a further material for coming to a conclusion that there is apprehension of breach of peace. Sitting in the revisional jurisdiction from an order under sub-section (5) the learned Additional Sessions Judge was perfectly entitled to take a different view. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 145- Breach of peace over possession The Magistrate must bear in mind that the jurisdiction under this provision is emergency in nature and therefore, he need not wait for a police report but he must act with caution in drawing up such proceeding. Acceptance of the police report or any suggestions given by such report may sometime negate the purpose for which the power, is given upon the Magistrate under section 145. The Magistrate should not act as a routine work relying upon the said report.

When the parties submitted to the jurisdiction of the court, placed their respective case, the court should not pass such exceptional order dispossessing a party in possession of the disputed property. The Additional Sessions Judge who heard the revision petition has overlooked this aspect of the matter and maintained the order of appointment of receiver. The High Court Division has rightly interfered with the said orders. Omar Faruque Majumder =VS= Borhanuddin (Bacchu). [9 LM (AD) 378]

Section 146—Court’s concern in a proceeding under this section—The basic condition for a proceeding under section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc. between the trial claimants. The concern of the Court in such a proceeding will therefore be the factum of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights. Abdul Jabbar vs Azizul Haque 46 DLR 416.

Section 147—Removal of obstruction—If the Magistrate, after recording evidence, finds merit in the case, he will pass orders prohibiting interference with the right of using the disputed land as the 1st Party’s pathway. In passing such order the Magistrate has sufficient jurisdiction to pass ancillary orders so as to make his order of prohibition effective and, if necessary, to pass orders for removal of any obstruction in the pathway. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.

Section 154

There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. ......(40) [73 DLR 18]

Editors’ Note

Two appellants were convicted for commission of offence punishable under sections 302/34 of the Penal Code and they were sentenced to death by the trial Court. The High Court Division confirmed the conviction and sentence awarded by the trial Court. There was a dying declaration made by the victim and recorded by the I/O of the case. The Appellate Division found that both the dying declaration and its contents have been proved by 4 PWs and the testimonies of PW-1 and PW-2 to be corroborative to the dying declaration. The Appellate Division held that the learned Courts below upon proper consideration of the testimonies of the witnesses and dying declaration of the victim found the appellants guilty of the charge levelled against them. However, considering that the appellants are in death cell for about 14 years, it commuted the sentence of the appellants from death to one of imprisonment for life with fine.

Evidence Act 1872, section 32(1) read with section 162(2) of Code of Criminal Procedure, 1898

Whether a dying declaration recorded by an Investigating Officer is admissible in evidence: In view of the testimonies of the PW-16 S.I. Moazzem Hossain and P.Ws. 4, 5 and 18 we do not find any reason to disbelieve the dying declaration of the victim (exhibit-4). It is  true that when a police-officer in course of investigation examines any person supposed to be acquainted with the facts and circumstances of the case, the substance of that examination falls under the category of statement recorded under section 161 of the Code of Criminal Procedure and that statement is not admissible in evidence. But in view of the section 162 (2) of the Code of Criminal Procedure a dying declaration recorded by an Investigating Officer does not lose its special evidentiary value and can be sole basis for awarding conviction. Unlike recording of a confessional statement law does not require that a dying declaration shall be recorded by certain prescribed persons for the very reason that a dying man may not have sufficient time in his hand for his declaration to be recorded by a prescribed person. ...(Para 14)  16 SCOB [2022] AD 17

Section 154 

In facts, 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. [74 DLR (AD) 28]

Section 154—FIR—delay——The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story. Abdul Latif vs State 44 DLR 492.

Section 154—FIR does not contain detailed facts of the prosecution case. Its main purpose is to give information of a cognizable offence to the public and set the law in action. Ataur Rahman vs State 43 DLR 87.

Section 154—FIR—Effect of departure from FIR story—where the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded. Gopal Rajgor vs State 42 DLR 446.

Section 154-A FIR may be lodged by any person for, it is meant just to set the machinery of law in action. Shah Alam vs State 42 DLR (AD) 31.

Section 154—Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. Nazrul Islam vs State 45 DLR 142.

Section 154—FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. State vs Abdus Sattar 43 DLR (AD) 44.

Section 154-The first information report is not a substantive piece of evidence and can be used only for the purpose of corroborating or contradicting the matter thereof, but its value lies in being the earliest version of the prosecution story. Seraj Miah vs State 49 DLR 192.

Sections 154-Where there is no FIR or where the FIR cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it. (NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Section 154-A massage given to the local police station even if cryptic, if it discloses a cognizable offence may constitute an FIR within the meaning of section 154. A telephonic message to the police station which has been recorded by police officer and started investigation basing upon the message if it discloses a cognizable offence, the police can treat it as an FIR. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Sections 154 and 173-The conduct of Commission raises serious question as to its neutrality, fairness and sincerity in dealing with the Basic Bank loan scam. Salim (Md) vs State, 70 DLR 159

Sections 154 and 498-Neither the branch nor the HOCC committee recommended for sanction of the loan to the borrower company; despite the Board of Directors sanctioned the loan and ultimately a huge amount of loan money that is public money was misappropriated by the borrower in connivance with the Board members and other officials of the Bank. But it surprising to note that none of the members including its Chairman and other members of the HOCC committee were made accused in the FIR though prima facie their involvement has been disclosed in the FIR. Salim (Md) vs State, 70 DLR 159

S. 154-Where there are glaring contradiction between contents of F.I.R. with that police report then contents of F.I.R. are false and concocted. Kazi Khairuzzaman & Ors. Vs. The State, 33 BLD (2013)-HCD-60.

S. 154-F.I.R-Every information relating to the commission of a cognizable offence given to the Officer-in-charge of a Police Station or any other authorised police officer, and which is first in point of time, shall be the first information report (F.I.R.) of the case. Information lodged after the commencement of investigation cannot be the F.I.R. but is a statement under section 161 of the Code of Criminal Procedure. Alauddin Vs. The State (Criminal), 2 ALR (2013)-HCD-457

Delay in Lodging F.I.R.

The F.I.R. was lodged at delay of 13 days and no explanation was given thereto. The appearance of the informant victim at 6.30 at the place of occurrence to get back her goat also appears as a myth. In the month of February the sun sets prior to 6 P.M. and darkness comes up at 6.30 P.M. Posting of goat till 6.30 P.M. in the filed 1000 yards away from the residence does not consistent with the ordinary course of village life. The circumstance of the case together with inordinate delay casts reasonable doubt to the prosecution case and in view of the fact, the sole evidence of the prosecutrix cannot be relied on for conviction of the convict appellant as well as the convict-accused..(40) Md. Moznu Vs. The State, 3 TLR (2013)-Page 472.

S. 154 read with Ain Siringkhala Bignakari Aparad Daman Ain, 2002: Section 4- In the instant case there is no First Information Report in the eye of law as per Section 154 of the Code of Criminal Procedure. Because a General Diary was initiated and money was recovered before G.D. but the General Diary has not treated as First Information Report (FIR). There is no scope of an FIR subsequently after recording the G.D. relied on 38 DLR (AD) 311 and 6 MLR (AD) 279. Alauddin & Anr. Vs. The State (Criminal), 21 BLT (2013)-HCD-191.

Section 154––The first information report is not a substantive piece of evidence but it can be used to corroborate the informant or to contradict him. It cannot be used to contradict the evidence of any witness other than the informant. The Court is, of course, entitled to note the conflict between the first recorded version of the prosecution case and the case made out in the course of the trial. State vs Tajul Islam 48 DLR 305.

Section 154-The First Information cannot be treated as the first and the last word of a prosecution case—Weight is to be give to the legal evidence adduced by a witness before the Court at the time of trial. Al Amin vs State 51 DLR 154.

Section 154-When the First Information Report is lodged within minimum possible time, such First Information Report story should not be disbelieved only because of any somersault on the part of the informant.

We have already found that for saving his full brother, the informant suppressed the truth at the time of deposing in the Court and, as such, we are of the view that in this case before us conviction may be given on the basis of the statement made in the First Information Report and on the basis of the evidence of the witnesses who corroborated the First Information Report story. Khorshed vs State 51 DLR 317.

Section 154—The filing of the first information report by the victim’s father that she died after taking poison was no bar to file a second first information report if subsequently it transpires that the death was homicidal in nature. Abdul Khaleque vs State 53 DLR (AD) 102.

Section 154—Publication of a report in a news-paper about commission of a cognizable offence against a particular person is not “information” within the meaning of section 154. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.

Section 154—The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed & others 54 DLR 333.

Section 154—There could not be any second first information report and there could not be any investigation on the strength of such a first information report. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513.

Section 154—The entire period of trial is to be calculated on the basis of the concerned Judge’s working days. On 5 occasions the concerned judge was on leave which are to be excluded from the period of trial. Such period excluded, this case is not hit by section 10 of the said Act., This aspect has not also been raised during the trial before the Judge to count his working days as contemplated in section 10 of Act. State vs Naimul Islam 60 DLR 481.

Section 154-FIR—Delay—Mere delay in lodging a case is not a ground for disbelieving a prosecution case, for there are various circumstances in which lodging any case as to the commission of offence may be delayed. (Per SK Sinha J) Major BazIul Huda vs State 62 DLR (AD) 1.

Section 154-Words ‘মামলা দায়ের’ means institution of a case by submission of a charge- sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 of the Code of Criminal Procedure or a complaint (অভিযোগ) as envisaged under Rule 3 and 4 of the Rules.

The irresistible conclusion is that no sanction will be required to file a complaint (অভিযোগ) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended section 32, before institution of a case (মামলা দায়েরের ক্ষেত্রে) in the concerned Court. Anti- Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.

Sections 154 and 157—‘Information’— News-paper Report—The use of the word ‘information’ in section 157 normally means the information received under section 154 of the Code. In section 157, besides using the word ‘information,’ the expression ‘or otherwise’ has also been used. This cannot empower a police officer to start investigation on the basis of a report published in a news-paper. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.

Sections 154 and 157—Receipt of information is not a condition precedent for investigation—The officer-in-charge of a police station can start investigation either on “information” or “otherwise”. Saifuzzaman vs State 56 DLR 324.

Sections 154, 156 & 157—If an officer-in-charge of a police station does not investigate a case, some reasons must be recorded and with such reasons he should notify the informant that he would not investigate into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.

Sections 154, 156 & 157—An officer-in-charge of a police station is legally bound to reduce an information of cognizable offence into a first information report and to start investigation into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.

Sections 154 & 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the informant was in fact the First Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be treated as one under section 161 CrPC. Shahjahan vs State 46 DLR 575.

Sections 154 and 161—The information of commission of a cognisable offence earliest in point of time, on the basis of which law was already set in motion, is the first information report within the meaning of section 154 of the Code and the first information report lodged later on during investigation is a statement of PW 1 under section 161 of the Code and, as such, it is inadmissible. State vs Al Hasib Bin Jamal 59 DLR 653.

Sections 154 & 161—The written information that was handed over by PW Ito the SI (PW 12) of the Sonargaon PS and Investigating Officer at 19-45 hours of 4th March, 1987 and on receipt whereof PW 12 started Sonargaon PS.Case No. 2 dated 4th March, 1987, is in the eye of law not a FIR but a statement in writing by PW 1, whoh heard from PW 2 about the incident, to the Investigating Officer, subsequent to commencement of the investigation and, as such, the same is a statement under section 161 of the CrPC (38 DLR (AD) 311). Ansar (Md) Chan Mia vs State 53 DLR (AD) 115.

Sections 154, 161 & 162—First Information Report is an accusation, an information relating to the commission of cognisable offence reported to the Police by any person with the object of putting the Police in motion in order to investigate. Nure Alam vs State 54 DLR 242.

Sections 154 & 162—The document exhibited as FIR in the case should not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was a GD Entry thereon, but the same had not been produced. Akhtar Hossain vs State 44 DLR 83.

Sections 154-173, 173(3B)- We are of the view that the investigation of crime is carried out dehors the mandate contained in the Code of Criminal Procedure containing sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under section 173(3B). The High Court Division rightly allowed the investigating agency of holding further investigation even after submission of the police report and after acceptance ance of the same. The facts, circumstances and law related thereto, we do not find any wrong in the decision of the High Court Division which calls for any interference by this Division......Monjur Morshed Khan VS Durnity Daman Commission, [5 LM (AD) 241)

Section 154 F.I.R- The case is to be assessed on merit on the basis of the evidence adduced before it Where there is no F.I.R. or where the F.I.R. cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it.... (Nazmun Ara Sultana, J). State -VS- Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]

Section 154- Second F.I.R- Recording of second FIR depends upon the facts of each case and the matter is to be seen in the context of totality of the circumstances and allegations.

In the instant case due to onesided version disclosed in earlier FIR No.17/2010, the investigating agency never bothered to look into the crime from another angle as narrated in the other FIR dated 27.08.2015, which means that as per assertions of Respondent No.1, the alleged culprits could have otherwise escaped from their criminal liability successfully at the very initial stage without even being charged for the offence on the basis of misleading contents of earlier FIR....... Ali Muhammad =VS= Syed Bibi, [1 LM (SC) 645]

Section 155—A police officer is not to investigate into a non-cognizable case under section 155 CrPC without the order of a Magistrate of the first or second class. Under the l4w when the police has a report of a non-cognizable offence he is bound to refer the informant to the Magistrate for initiating the process of investigation. Aroj Ali Sarder vs State 41 DLR 306.

Sections 155, 190 & 195-There is nothing in the law to prevent a police officer from making a complaint when some facts come to his knowledge even if he cannot investigate them. Abul Hossain vs State 55 DLR (AD) 125.

Sections 155, 190 & 537—Non cognizable offence—Mere irregularity like investigation by an officer not authorised to investigate a non – cognizable offence does not affect the legality of a proceeding of a Court below Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a non-cognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.

Section 155(2)—There is no legal bar on the part of the police officer receiving an information about a non-cognizable offence in recording the same in the general diary and obtaining permission from a competent Magistrate to investigate into the case. Nasiruddin Kazi vs Aleya Khatun alias Fulu 48 DLR 216.

Section 155(2)—Without complying with the provisions of section 155(2) of the Code the police held investigation of the non-GR case. The subsequent taking of cognizance by the Magistrate is certainly an abuse of the process of the Court. Mohiuddin Ahmed vs State 63 DLR 564

Section 155(2), 241A—The matter should be sent back to the Magistrate for hearing specifically on the point whether the investigation can be proceeded and police report can be submitted under section 509 Penal Code without the permission of the Magistrate. Abul Hossain vs State 53 DLR 402.

Sections 156(3) & 200—There is nothing wrong in the procedure adopted by the Magistrate directing the police to hold investigation treating the petition of complaint as a First Information Report Cases reported in 6 DLR (WP) 205 and 54 Cal 305 are not applicable in the facts of the present case. Yakub Ali vs State 47 DLR (AD) 94.

Sections 156(3) & 190(1)-The prayer made by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making reinvestigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed All @ Subed 47 DLR 252.

Section 156-While sub-section 1 of section 156 empowers the OC of the concerned police station to investigate any cognizable offence without being ordered by the Magistrate, sub-section 3 of the same, thereafter, seeks to clarify that, by investing the OC with the power, the Magistrate has not been made powerless to order an investigation in the matter which is mentioned in sub-section I of section 156. Dr Akhtaruzzaman vs State, 70 DLR 513

Sections 156, 167 and 173-The legislature has not contemplated investiga- tion into a case by two investigation agencies at a time or simultaneously. A reading of these sections does not also show that investigation into a case by two investigation agencies can be done at a time or simultaneously. State vs Secretary, Ministry of Public Administration, 67 DLR (AD) 271

Sections 156 and 173(3B)-No doubt, where there is already an investigation culminating in a police report, the court can trigger into motion the power of the police to conduct further investigation under section 173(3B) of the Code. The provision does not provide any specific provision that in order to hold further investigation by the police, it is necessary to take permission of the Court. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120

Sections 156 and 200-Naraji Petition Narajoo 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

Section 157—First Information Report— FIR cannot be substituted for evidence given on oath and when there is no other evidence the facts mentioned in the information could not be relied upon as proof of the offence alleged. Babul vs State 42 DLR (AD) 186.

S. 157-The factor of time mentioned in section 157 is very important to serve as a safeguard against fabrication of false evidence. The statement made at or about the time when the Occurrence took place may be proved and used to corroborate the testimony of a witness and statements made long after the occurrence cannot be used as corroboration as it does not exclude the chance of false implication of the innocence person. State Vs. Kazi Mahbuddin Ahmed, 18 BLC (2013)-AD-210.

Section 160—Since there is no reference as to any investigation or inquiry in the notice issued by the police officer asking the petitioner to produce documents the same has been issued in an unauthorised manner. Mohsin Hossain vs Bangladesh 49 DLR 112.

Section 161—The right of cross-examination on the basis of witnesses’ previous statements under section 161 CrPC having not been available, prejudice to the defence could not be ruled out. The right given to the accused of getting copies of the statements under section 161 CrPC is a valuable right. End of justice requires setting aside the conviction. State vs Zahir 45 DLR (AD) 163.

Section 161—The examination of prosecution witnesses under section 161 CrPC after a considerable lapse of time casts serious doubt on the prosecution story. Mom Ullah vs State 40 DLR 443.

Section 161—The investigation officer having not been cross-examined on the question of delay in recording the statement under section 161 CrPC, there is no substance in the contention that the delay should have been taken as a factor to question the veracity of the witnesses concerned. Shadat Ali vs State 44 DLR 217.

Section 161—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker vs State 49 DLR 480.

Section 161—Due to lapse of time in recording of their statements, witnesses indulge in concoction of the prosecution case, more so when they are inimically disposed to the accused. Moreover, one tainted evidence cannot corroborate another tainted evidence.

In a case where enmity is admitted the evidence of such witnesses are liable to be closely scrutinised and unless there are corroboration by cogent, independent and disinterested witnesses the evidences of such witnesses who are inimically disposed are not accepted as the basis for conviction, particularly in a murder case. State vs Hosen Sheikh @ Hochen 50 DLR 508.

Section 161—Because of belated examination of witness by the Investigating Officer for no plausible reason, possibility of embellishing the prosecution case by the witness cannot be ruled out. State vs Babul Hossain 52 DLR 400.

Section 161—Judges are competent to take judicial notice of the fact about the present condition of law and order situation in the country and, as such, it is not unlikely that a witness will hesitate to tell the truth for fear of his life. Mahmudul Islam vs State 53 DLR (AD) 1.

Section 161—Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording of statements when memory of witness remains fresh as human memory is always fleeting. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513.

Section 161—The contradiction of the statement under section 161 of the Code of Criminal Procedure with the ultimate testimony of the PWs made before the trial Court has adverse effect upon the reliance of the prosecution witnesses which reduces the evidentiary value of the testimony of the PWs as adduced at the trial which makes the witness unreliable on the point on which the witness has contradicted. Zamir Ali (Md) vs State 59 DLR 433.

Section 161—Inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.

Section 161—Investigating officer did not assign any reason for the long delay in examining the PWs. Delay in examining the witnesses under section 161 of The Code is fatal to prosecution case and statements of witnesses are required to be left out of consideration. Sahabuddin vs State 61 DLR 54.

Section 161—Under certain circumstances delay of a few days even, may render the testimonies of the prosecution witnesses doubtful but yet there may be cases is which delay of years together may not do so. State vs Resalder Moslem uddin 61 DLR 310

Section 161—Benefit of doubt—It was the failure on the part of the Investigating Officer tO detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient attitude from the Court because of their involvement in such a horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali Shah and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Therefore, the two condemned-prisoners are entitled to be acquitted on the principle of benefit of doubt. State vs Resalder Moslemuddin 61 DLR 310.

Statement of witnesses before police Inordinate delay in recording statement of a witness u/s 161 Cr.P.C-the weight of the evidence of such witness is diminished. Haji Md. Jamaluddin& others Vs. The State, 14 BLD (HCD) 33

 

Statement before Police

Omission of vital fact by the witnesses re- corded by the investigating officer that he saw the condemned prisoner and his wife in the night of occurrence of going inside the hut and that they slept inside the hut in the night preceding the morning of which condemned prisoner's wife was found dead is unreliable. The witnesses having not stated at the earliest point of time, the said evidence cannot be relied upon in Court. The State Vs. Azizur Rahman Habib, 20 BLD (HCD) 467

 

Statement of witnesses before police

Inordinate delay in recording the statement of witnesses by the LO under section 161 Cr.P.C. renders their evidence shaky. Zafar and others vs. The State, 14BLD (HCD)280

33 DLR 320: 11 D.L.R. (HC) 365; 27 D.L.R. (SC) 1: 38 DLR 289: 41 DLR 11: 50 Cr.L. J. 569

Section 161—Unexplained delay in recording the statements of eye-witnesses by Investigation Officer casts a doubts as to the truthfulness of their testimonies. They had been given chance of concoction and false implication. Therefore, their evidence should be left out of consideration. When a witness is cross examined bya party calling him, his evidence is not to be rejected either in whole or in part but the whole of evidence so far as it affects both parties favourably or unfavourably must be taken into account and assessed like any other evidence for whatever its worth. Jalaluddin vs State 58 DLR 410.

Section 161—The witness claiming to have seen the occurrence admittedly resides at a far off place—Some time had therefore elapsed to find him and for recording his statement No adverse presumption should be drawn because of the delay in recording his statement. State vs Mokammel Hyeath Khan 58 DLR 373.

Sections 161 & 162—A statement of a witness recorded under section 161 CrPC couldn’t be used as substantive evidence. It can only be utilised under section 162 CrPC to contradict such witness in the manner provided by section 145 of the Act. State vs Nazrul Islam 57 DLR 289.

Sections 161 & 162—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilised under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387.

Sections 161 and 162—An omission from the statement recorded in a boiled form does not amount to contradiction and the alleged contradiction sought to be taken from the omission of the statement cannot, in a particular case, be proved under section 162 of the Code to hold that contradiction in accordance with the provision of section 162 has been established. Abul Kalam Azad alias Ripon vs State 58 DLR (AD) 26.

Sections 161 and 162—When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Abul Kalam Azad alias Ripon (Md) vs State 58 DLR (AD) 26.

Sections 161, 164, 173 & 205C—Statement recorded under section 164 of the Code comes within the purview of the word ‘document’ used in section 173 and section 205C and such statements should be transmitted to the Court of Session along with the case record under section 205C. Nurul Islam Manzoor vs State 52 DLR 276.

Sections 161, 164 & 342—The accused failed to discharge his obligation. The certified copies of the statements under sections 161 and 164 of the Code of the maids and others of the house of the accused filed by the accused at the time of examination under section 342 of the Code in support of his case that the deceased committed suicide by hanging are not evidence and, as such, cannot be considered. There is no evidence that the deceased committed suicide by hanging. Moreover the accused’s explanation that the deceased committed suicide by hanging has been proved untrue. It is proved beyond doubt that the deceased was done to death. There is nothing to hold that anybody else besides the accused could cause the death of the deceased. State vs Azam Reza 62 DLR 399.

Sections 161 & 241A—Consideration of the statements made under section 161 of the CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. Shaheb All vs State 52 DLR 366.

S. 161-It is contended that the prosecution witnesses were examined about one month after the occurrence under Section 161 of the Code of Criminal Procedure and as such, for inordinate delay in recording their statements, the evidence adduced by them in Court should have been discarded. Admittedly, a statement recorded under Section 161 of the Code of Criminal Procedure is not a substantive evidence. Mere delay in recording the statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure can not be considered fatal if the evidence adduced by them in Court appears to be credible after sifting....(15). Shahjahan Khalifa Vs. The State, 10 ADC (2013)-Page-172.

S. 161-The investigating fficer did not examine the persons who were vital witnesses and for want of their evidence the prosecution had measurably failed to prove its case beyond all reasonable doubt. Abul Hashem Vs. State (Criminal), 18 BLC (2013)-HCD-74.

S. 161-Statement recorded u/s 161 of the Code is not substantive evidence. Mere delay in recording the statement of a witness by the investigation officer of the u/s 161 Cr.P.C. is not fatal to the prosecution if the evidence of such witness adduced by them before the Court appears to be credible on sifting of the evidence. Shahjahan Khalifa Vs. The State, 2 ALR (2013)-AD-78.

Section 161-Non-mentioning of name of the petitioner in the 161 statements cannot exclude him from all possibilities of implication as an abettor of the offence because he is a beneficiary of the illegal transaction which was allegedly done in connivance with other accused named in the FIR and the charge-sheet. Ali Haider Chowdhury vs State, 65 DLR 116

Section 161-Mere delay in recording the statement of a witness by the investi- gation officer cannot be the sole ground to discard his evidence, if he withstands the test of cross-examination and thus appears to be truthful witness. As many as 3 (three) different Police Officers investigated the case, and it appears to us that the change of Investigation Officer also contributed to the delay in examining them. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 161- "Heads (iii) and (iv) shall be noted regarding the particulars of the house searched made with the names of witnesses in whose presence search was made (section 103 of the Code) by whom, at what hour, and in what place arrests were made; in what place property was found, and of what description; the facts ascertained; on what points further evidence is necessary, and what further steps are being taken with a view to completing the investigation. The diary shall mention every clue obtained even though at the time it seems unprofitable, and every step taken by the investigating officer, but it shall be as concise as possible. It shall also contain the statements of witnesses recorded under section 161 of the Code."

"264.(a) Case diaries (B.P. Form No. 38) shall be written up as the enquiry progresses, and not at the end of each day. The hour of each entry and name of place at which written shall be given in the column on the extreme left. A note shall be made at the end of each diary of the place from, the hour at, and the means by which, it is dispatched. The place where the investigation officer halts for the night shall also be mentioned.

(b) A case diary shall be submitted in every case investigated. The diary relating to two or more days shall never be written on one sheet or dispatched together. Two or more cases should never be reported in one diary; a separate diary shall be submitted in each case daily until the enquiry is completed. But it is not necessary to send one on any day on which the investigation, though pending. is not proceeded with.

(c) The diary shall be written in duplicate with carbon paper and at the close of the day the carbon copy, along with copies of any statement which may have been recorded under section 161 Code of Criminal Procedure and the list of property recovered under section 103 or 165 of that Code, shall be sent to the Circle Inspector. When an investigation is controlled by an Inspector of the Criminal Investigation Department, the investigating officers shall forward the Circle Inspector's copy of the case diary through that officer who shall stamp or write on the diary the date of receipt by him and, after perusal, forward it to the Circle Inspector.

(d) In special report cases an extra carbon copy shall be prepared of the diaries. statements of witnesses recorded and lists of property recovered and sent direct to the Superintendent and a further carbon copy to the (Sub-divisional) Police Officer where there is one. απο

(e) Each form shall have a separate printed number running consecutively throughout the book so that no two forms shall bear the same number. On the conclusion of an investigation the sheets of the original diary shall be removed from the book and filed together. Every file shall be docketed with the number, month and year of the first information report, the final form submitted and the name of the complainant, the accused and the investigating officer. The orders regarding preservation and destruction of these papers shall also be noted.

(f) When sending charge-sheet to the Court Officer, the investigating officer shall send all his original case diaries which shall be returned by the Court Officer on the case being finally disposed of (vide regulation 772).

(g) Case diaries shall be written in English by those officers competent to do so. Other officers shall write either diaries in the vernacular. Statements recorded under section 161 of the Code of Criminal Procedure, shall, however, always be recorded in the language of the witness. In the investigation officer is unable to do so, he should write it in English.

(h) Instructions for the custody and dispatch of case diaries are given in regulation 68. Ministry of Law, Justice & Parl. Afrs. =VS-BLAST, (3 LM (AD) 274]

Section 162-Section 162 of the Code of Criminal Procedure states that no statement made by any person to a police officer in course of investigation under Chapter XIV shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made whether it was signed by the person making it or it was reduced into writing.

The Appellate Division observed that there is clear bar to taking into consideration any statement made by any person accused of an offence to a police officer in course of investigation as evidence against him. Any statement made to a police officer can be used for the purpose of corroboration or contradiction of the maker of the statement. .....Md. Tofajjal Hussain -VS- The State, [1 LM (AD) 483]

Section 162—Test identification—The substantive evidence of a witness as regards identification is the statement made in the court. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances the witness came to pick out the particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity. Shamsul Alam vs State 56 DLR 218.

Section 162—Statements made to the Police in course of investigation of an offence started on the basis of FIR are admissible in evidence. Ext I not being statements made in course of investigation to the Police comes within the above provision of law. Nurul Islam vs State 40 DLR 122.

Editors’ Note

This is a case of brutal killing of a 11-year-old boy for ransom by his uncle and uncle’s cohorts in which the dead body of victim could not be found due to cutting it into pieces and throwing them in the water body connected with sea. There was no eyewitness to the occurrence. Appellant made a confessional statement. The Appellate Division examining the confessional statement of the appellant found it to be voluntary and true and also found that the circumstantial evidence unerringly pointing to the guilt of the appellant but considering the length of period spent by the appellant in the condemned cell and other circumstances commuted his sentence of death to one of imprisonment for life.

Section 164 of the Code of Criminal Procedure: It is well settled that the confessional statement can be the sole basis of conviction if it is made voluntarily and it is true. In the instant case, the confessional statement of the appellant is voluntary and true and it was rightly found to be so by both the trial Court and the High Court Division. It is true that there is no eye witness in the instant case, but the inculpatroy, true, and voluntary confessional statement of the convict-appellant, and the circumstances are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellant in committing murder of the victim Rashed. ...(Paras 40 & 41) 16 SCOB [2022] AD 51

Editors’ Note

This is a case of gang rape and murder. There was no eyewitness. Appellants were suspected of being involved with the commission of crime. Police arrested appellant Mamun and Azanur who gave confessional statements describing vividly the role played by them and other co-accused, namely, Shukur and Sentu in committing the crime which was supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses regarding the marks of injury on the body of the deceased. The Appellate Division held that in such case the non-confessing accused persons can be equally held liable like Azanur and Mamun for murdering the deceased after committing rape. The Court further observed that, the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial and adverse inferences may be drawn upon silence on part of those who have been so incriminated by the confession of the co-accused. However, the Appellate Division maintained the death sentence of the appellant Shukur Ali who inflicted fatal knife injuries to the deceased and commuted the sentence of death of other appellants to imprisonment for life.

Section 164 of the Code of Criminal Procedure and Section 8 of the Evidence Act: It is true that there is no eye witness in the instant case, but the inculpatory, true, and voluntary confessional statements of two accused, and the circumstances particularly long absconsion by Shukur and Sentu are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellants Shukur, Sentu, Mamun and Azanur in the alleged rape and murder thereof. ...(Para 63) Due process vis-a-vis crime control consideration: In performing our duties, this court is charged with the task of not only assessing the facts against the law, but also considering the impacts of judgments that are pronounced and any assessment made on the overall justice system. With modern criminal justice mechanism, the right against self-incrimination is one that stands as a cornerstone. As such, confessions by a co-accused are generally inadmissible against the accused in a concerned case. However, in our duties of administering justice, we are sometimes faced with a case that forces us to consider aspects of larger policy at play. The balance between crime control and due process models of justice is such a consideration that requires reassessment with changing times and upon the fact of each case. The case before us is one of such a heinous crime, where measures of control are made far more necessary, to ensure that justice can be brought to the victim in question. As such, while due process is still of utmost importance; crime control considerations must be made as well. ...(Para 64, 65 and 66)

Adverse inferences may be drawn upon silence on part of those incriminated: The principle of the right against self incrimination is also accompanied by the principle that upon silence on part of those incriminated, adverse inferences may be drawn at any stage of the trial and pre-trial procedures. When the co-accused, Azanur and Mamun put forth their confessions, incriminating the accused Shukur and Sentu, they had the opportunity to present their accounts of the events in question. Their refusal to adduce defence witness and to give any statement, allows this Court to draw an adverse inference against them, in conjunction with the inferences drawn from the period of their absconcion. ...(Para 68 and 69) Section 30 of the Evidence Act: We hold that confessional statement of a co-accused can be used against others non[1]confessing accused if there is corroboration of that statement by other direct or circumstantial evidence. In the instant case, the makers of the confessional statements vividly have stated the role played by other co-accused in the rape incident and murder of the deceased which is also supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses particularly the deposition of P.Ws.1,2,3,10,11,12,14 and 18 regarding the marks of injury on the body of the deceased. Every case should be considered in the facts and circumstances of that particular case. In light of the facts and circumstances of the present case, we are of the view that the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial. (Emphasis added). Thus, the accused namely Shukur and Sentu are equally liable like Azanur and Mamun for murdering the deceased after committing rape. ...(Para 70) 16 SCOB [2022] AD 62

Section 164 of the Code of Criminal Procedure, 1898:

In the case before us, we however, have found that the order of conviction and sentence is not based solely on the confessional statement of the convict, rather it is based on the testimony of the witnesses. Moreover, the material exhibits, inquest reports, post mortem reports all these evidence clearly establish the complicity of the convict in the commission of the offence, he has been charged with. In this case, the confessional statement under section 164 of the Code of Criminal Procedure, is supported by other evidences and corroborated by the oral evidences. Moreover, when the truth of the statement made in the confessional statement are established by other relevant, admissible and independent evidences, then the voluntary nature of the same is proved. We have found the confessional evidence as true and voluntary. (Para 33 and 34)

 

Effect of delay in producing the accused:

We are of the opinion that, even if, there were some unintentional delay or failure of the police to produce the accused within 24 hours, this mere delay alone should not be a ground to brush aside a confessional statement which has been found to be truth and voluntary in nature, since established by other evidence. (Para 35) [18 SCOB [2023] HCD 8]

 

Editors’ Note

This is a case where a renowned Professor of University of Rajshahi was brutally murdered by one of his colleagues. There were no eye witnesses. Based on the circumstantial evidence police arrested the caretaker of the house where the victim 17 SCOB [2023] AD Dr. Miah Md. Mohiuddin & ors Vs. The State & ors (Hasan Foez Siddique, CJ) 3 lived. The arrested accused confessed under section 164 of the Code of Criminal Procedure, 1898. Accordingly the investigation Officer arrested other co-accused and two of them confessed. But the mastermind of the killing, an Associate Professor of the same University declined giving any confessional statement. The Appellate Division found that the strong circumstantial evidence coupled with confessions of the co[1]accused and motive of killing proved by the prosecution point unmistakably to the guilt of the mastermind of the murder and confirmed the conviction and sentence awarded by the High Court Division. Appellate Division also discussed the effect of alleged prolonged police custody upon the acceptability of confessional statement of one of the convicts and discrepancy between confession and medical evidence.

Section 164 of the Code of Criminal Procedure

If a confessional statement does not pass the test of voluntariness, it cannot be taken into consideration even if it is true: The Evidence Act does not define “confession”. The courts adopted the definition of “confession” given in Stephen’s Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. The act of recording a confession is a very solemn act and section 164 of the Code of Criminal Procedure lays down certain precautionary rules to be followed by the Magistrate recording a confession to ensure the voluntariness of the confession. In such a case, the accused being placed in a situation free from the influence of the Police is expected to speak out the truth being remorseful of what he has committed. A confession can be acted upon if that passes two tests in the assessment of the court. The first test is its voluntariness. If a confessional statement fails to pass the first test, the second test is immaterial. If he does not disclose his complicity in an alleged crime voluntarily, court cannot take into consideration the confessional statement so recorded, no matter how truthful an accused is. (Para 41)

It appears to us that the confessional statements pertaining to assault by knife substantially fit the medical evidence. It is only when the medical evidence totally makes the ocular evidence improbable, then the court starts suspecting the veracity of the evidence and not otherwise. That the mare fact that doctor said that injury No.1 was an “incised looking injury”, not “incised injury”, is too trifling aspect and there is no noticeable variance. The opinion of the doctor cannot be said to be the last word on what he deposes or meant for implicit acceptance. He has some experience and training in the nature of the functions discharged by him. After Zahangir inflicted the knife blow in the occipital region of victim Professor Taher, the other accused pressed down a pillow in his face to ensure his death. After confirming the victim’s death, the accused persons took the dead body to the back side of the house on a dark night and the appellant Mohiuddin ushered them the way with the torchlight of his mobile. They then put the dead body inside the manhole. In doing so the accused had to carry the dead body to a considerable distance and during that time the dead body might have fallen from their grip causing crushing of hair bulbs in the already injured occipital scalp and rendering the incised wound look like ‘incised looking’ wound. ... (Para 43) 17 SCOB [2023] AD 4, Dr. Miah Md. Mohiuddin & ors Vs. The State & ors (Hasan Foez Siddique, CJ) 

Confessions are considered highly reliable because no rational person would make an admission against his interest unless prompted by his conscience to tell the truth. Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law “(vide Taylor’s Treaties on the Law of Evidence)”. Confession possesses a high probative force because it emanates directly from the person committing the offence, and on that count, it is a valuable piece of evidence. It is a settled principle of law that the conviction can be awarded solely on the basis of confessional statements of the accused if the same is found to be made voluntarily. ... (Para 44)

Prolonged police custody; Article 33 (2) of the Constitution:

It has been vehemently argued by the defence that appellant Zahangir Alam was kept in the police station from 03.02.2006 to 05.02.2006 i.e beyond the permitted period of 24 hours without taking him before a Magistrate and this illegal detention of the appellant suggests that the confessional statement given by him is not voluntary. From the cross[1]examination of PW-42 Md. Faizur Rahman, the then Officer-in-Charge of Motihar Police Station, it appears that appellant Zahangir Alam was taken to the police station on 03.02.2006 for questioning him about the occurrence. At that time he was not arrested in connection with this case. In fact, when Zahangir was taken to the police station on 03.02.2006the whereabouts of Professor Taher was not known to anybody and no formal ejahar was lodged. After the discovery of the dead body of Professor Taher Ahmed PW-1 lodged a formal FIR at around 10.10 AM on 03.02.2006. Even at that time, PW-1 did not make Zahangir an accused. It suggests that he was not taken to the police station as an accused. He was just taken there for questioning. The Investigating Officer of a case has the power to require the attendance of a person before him who appears to be acquainted with the circumstances of the case. When appellant Zahangir Alam was taken to the police station the facts of the killing of Professor Taher were still unfolding and nobody knew who did what. Appellant Zahangir Alam, being the caretaker of the house of the victim, was the best person to demystify and clear many questions about the occurrence posing inside the mind of the Investigating Officer. He was thought to be a vital person who could shed light on many unsolved questions and could help the prosecution to understand what actually happened there. But when from the circumstances it appeared unmistakably that Zahangir Alam must be one of the perpetrators of the killing of victim Professor Taher, he was then arrested on 04.02.2006 and was produced before the Magistrate on the next day, i.e., within 24 hours of his arrest as required by Article 33 (2) of the Constitution. So, the police did nothing wrong in arresting appellant Zahangir Alam after being sure about his complicity with the offence and producing him before the Magistrate within 24 hours of his arrest and for that reason, the defence objection does not sustain. (Para 45 and 46)

From a careful evaluation of the confessional statements, we are of the opinion that their statements are consistent with one another and corroborates the version given by each other. We are therefore, of the view that confessing accused were speaking the truth. (Para 47)

When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive: In a criminal case, motive assumes considerable significance. Where there is a clear proof of motive for the offence, that lends additional support to the finding of the Court 5 that the accused is guilty. When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive of the accused for committing the offence. (Para 52)

A complete review of the evidence indicates that there was pre-existing hostility between the victim and appellant Mohiuddin. The motive for the commission of the murder is explicit from the evidence of P.Ws 22, 25, 39 and 43 which is relevant. Proof of motive does lend corroboration to the prosecution case. The same plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor. Motive prompts a person to form an opinion or intention to do certain illegal acts with a view to achieving that intention. Adequacy of motive is of little importance as it is seen that atrocious crimes are committed for very slight motives. One cannot see into the mind of another (State Vs. Santosh Kumar Singh, 2007 Cr LJ 964). However, motive alone is not sufficient to convict the accused in case of circumstantial evidence. Along with motive, there should be some further corroborative evidence. (Para 55)

A voluntary and true confession made by an accused can be taken into consideration against a co-accused by virtue of section 30 of the Evidence Act but as a matter of prudence and practice the Court should not act upon it to sustain a conviction of the co[1]accused without full and strong corroboration in material particulars both as to the crime and as to his connection with the crime [Ram Prakash V. State of Punjab (1959 SCR 1219)]. “As is evident from a perusal of section 30 extracted above, a confessional statement can be used even against a co-accused. For such admissibility it is imperative, that the person making the confession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, such a confessional statement is relevant even against the others implicated. (Para 61)

A Judge does not presides over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape the tentacles of justice. That is what the justice stands for. (Para 65)

The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent. While awarding punishment, the Court is expected to keep in mind the facts and circumstances of the case, the legislative intent expressed in the statute in determining the appropriate punishment and the impact of the punishment awarded. Before awarding punishment a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. Considering the depraved and shameful manner in which the offence has been committed, the mitigating factor would not outweigh the aggravating factors. In this case, there was no provocation and the manner in which the crime was committed was brutal. It is the legal obligation of the Court to award a punishment that is just and fair by administering justice tempered with such mercy not only as the criminal may justly deserve but also the right of the victim of the crime to have the assailant appropriately punished is protected. It also needs to meet the society’s reasonable expectation from court for appropriate deterrent punishment conforming to the gravity of offence and consistent with the public abhorrence for the heinous offence committed by the convicts. (Para 67) [17 SCOB [2023] AD 1]

Code of Criminal Procedure (V of 1898)

Section 164(3)- The act of recording a confession is a very solemn act and section 164 of the Code lays down certain precautionary rules to be followed by the Magistrate recording a confession to ensure the voluntariness of the confession. In such a case, the accused being placed in a situation free from the influence of the policeis expected to speak out the truth being remorseful of what he has committed. A confession can be acted upon if that passes two tests in the assessment of the court. The first test is its voluntariness. If a confessional statement fails to pass the first test, the second test is immaterial. If he does not disclose his complicity in an alleged crime voluntarily, court cannot take into consideration the confessional statement so recorded, no matter how truthful an accused is. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8

Section 164—The trial Court misdirected itself when he had convicted appellants on the basis of statements of witnesses made under section 164 by treating them as confessional statements. Muslim vs State 47 DLR 185.

A confession should always be recorded during the Court hour. If it is recorded beyond the Court hour reason must be assigned that compliance of the condition was not practicable or that reasons for satisfaction be noted that justice would not be defeated for recording of the confession beyond the Court hour. Otherwise, it would certainly make out a scope to raise a question as to why the learned Magistrate had recorded it beyond the Court hour or what necessitated him to record it at that point of time, when he could have easily recorded it on the following day, if the maker really wanted to make it. The very purpose of the rule to ensure the regularity of recording confession and the precaution and safeguard provided in the rule would reduced it to such trifling value as to be almost idle, if not complied with.  [73 DLR 348]

On going through the confession, we do not find any reason is assigned by the learned Magistrate for recording the confession beyond the Court hour at about 7-30 pm. It is nowhere stated in the confession or in the order sheet that compliance of the condition attached with the rule for recording the confession was not practicable and justice would be defeated if the confession was not recorded at that point of time.   [73 DLR 348]

Section 164(3)

Acceptability of a confession depends on the satisfaction of confession recording Magistrate. [73 DLR 18]

Section 164 read with

Penal Code [XLV of 1860]

Sections 302 and 34

Belated retraction of the confessional statement and the allegations of torture by the police cannot be accepted since the accused was present throughout the trial and represented by a lawyer, and he could have retracted his confessional statement at any time within the 6 years while the trial was going on. [2022] 24 ALR (AD) 4

Section 164—Statements recorded under section 164 of the Code cannot be treated as substantive evidence of the facts stated therein. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139.

Section 164—Retraction of confession—Once a confession is found to be true and voluntary, a belated retraction will be of no help to the confessing accused. The necessity even of some sort of corroboration in such cases is not a requirement of law but it is usually desired as a rule of prudence. State vs Tajul Islam 48 DLR 305.

Section 164—It is settled principle that one part of the confession cannot be accepted and other part be rejected. It is an error to split up the confessional statement and use that part only which is favourable to prosecution. State vs Lokman Miah 48 DLR 149.

Section 164-The defect of non-compliance of section 164 CrPC by the Magistrate while recording a statement cannot be cured by his examination in Court. State vs Raisuddin 48 DLR 517.

Section 164—Before a confessional statement is relied upon it must be found that it was not only voluntary but also true. Voluntariness and truth together make it worthy of acceptance. Moslemuddin vs State 48 DLR 588.

Section 164—Confessional statement recorded on a plain paper without the narration of questions and answers and without complying with the provisions of section 164 CrPC becomes inadmissible. The accused was kept in police custody for 3 days preceding his confession and the forwarding report mentions injuries on his person. Confession is involuntary. Alaluddin alias Alauddin vs State 49 DLR 66.

Section 164—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192.

Section 164—The rule of prudence requires that a retracted confession needs corroboration inasmuch as it is open to suspicion. It is unsafe to rely on such confession without corroboration from other sources. Alaluddin alias Alauddin vs State 49 DLR 66.

Section 164-As against the maker himself his confession, whether judicial or extra judicial, whether retracted or not retracted, can validly form the sole basis of his conviction, if the Court believes that it was true and voluntary and was not obtained by torture or coercion. Abul Kashem vs State 49 DLR 573.

Section 164—When the accused were kept in police custody for two days, it was the duty of the Magistrate, who recorded their confession, to put questions as to how they were treated in the police station, why they were making confession and that if they made a confession or not they would not be remanded to police custody. Further, it is found in the record that the Magistrate did not inform the accused persons that he was not a police officer but a Magistrate. On scrutiny we find in the record that magistrate sent the accused persons to the police custody after recording their confessional statements. Therefore, we find the Magistrate had no idea or acumen that it was his legal duty to remove the other, inducement and influence of the police completely from the mind of the accused before recording their confession, So, therefore, we hold that the confessions made by the accused cannot be considered either against the maker or against their co-accused. State vs Abul Hashem 50 DLR 17.

Section 164-Exculpatory statement uncorroborated by any other evidence cannot be the basis of conviction. Abu Jamal vs State 51 DLR 57.

Section 164-There is no hard and fast rule that a retracted confession must be discarded. Retracted confession can form the basis of conviction if it is found true and voluntary. State vs Tota Mia 51 DLR 244.

Section 164—There is no requirement under the law for the Magistrate to inform the confessing accused that whether he confessed his guilt or not he will not be handed over to the police.

The submission of the learned Advocate that the absence of observing the formalities by the Magistrate regarding recording the confessional statements by saying that whether they confess of not they will not be handed over to the police and in view of not reporting of the fact by the confessing accused themselves that they confessed their guilt due to physical torture the submission of the learned Advocate for the appellants appears to have no bearing in this case. Rafiqul Islam @ Rafiq vs State 51 DLR 488.

Section 164—A retracted confession cannot be used to base a conviction for murder unless corroborated by credible independent evidence. State vs Manik Bala 41 DLR 435.

Section 164—Statement recorded under section 164 CrPC cannot be used as substantive evidence against the accused person except for contradicting or corroborating its maker. State vs Manik Bala 41 DLR 435.

Section 164-Confessional statement subsequently retracted—To base a conviction for murder upon a refracted confession alone is not safe when the proof of factum of murder is dependent upon that confession. State vs Manik Bala 41 DLR 435.

Section 164-Confession—Question of credibility when part of the occurrence is omitted or suppressed—It cannot be found nor it could be suggested by either the prosecution or the defence why throttling part of the occurrence was omitted or suppressed. Even if it be taken that accused Rina had deliberately suppressed the throttling part of the occurrence in her judicial confession that cannot mean that the confession was not true. Shahjahan Manik vs State 42 DLR 465.

Section 164—Confession—Its nature and credibility—The recording Magistrate having not made any genuine effort to satisfy himself to find out the real character of the confession it casts a serious doubt on the voluntariness of the confession which is the basic requirement of law. Akhtar Hossain alias Babul Akhtar alias Akhtar Ali vs State 44 DLR 83.

Section 164-Confessional statement—Such statement whether retracted or not, if found to be true and voluntary, can form the basis of conviction of the maker.

Confessional statements, credibility of—The UNO stated that he recorded the statements merely in his own language—there is nothing to show that he gave the accused warnings before recording the same, there is nothing to show the time given for reflection, it was not mentioned whether police were present at the time of recording—The Magistrate also did not inform the accused that they would not be sent to police custody after the making of the statements and the Magistrate’s statement as to the presence of PW 5 at the time of recording of the statements is contradictory to that of the latter—the confessional statements, in such facts and circumstances, are neither voluntary nor true. Hafizuddin vs State 42 DLR 397.

Section 164—Conviction can be based solely on confession, if found true and voluntary, though retracted subsequently. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.

Section 164-Confession—Rule of law as opposed to rule of prudence—Whether conviction

can be based on confession if voluntary and true. For ascertaining as to whether the confession is voluntary and true or not the Court has to examine the confession itself and consider the same in the light of the materials on record and broad probabilities of the case. There is no reason to disbelieve the evidence of the learned Magistrate who recorded the confession. No material could be elicited by the defence that the confession was the result of torture and maltreatment and hence it was not voluntary and not true as well. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.

Section 164—Retracted confession—A confession can be taken into evidence, though retracted, if found to be true and voluntary. A belated retraction at the end of the trial would be of no value. State vs Nurul Hoque 45 DLR 306.

Section 164—Statement made by the victim of an offence, when it can have evidentiary value—In the absence of examination of the alleged victim, her statements allegedly made to the police or to the Magistrate cannot be treated as evidence against the accused. As neither the victim girl nor the magistrate was examined, the statements recorded by the latter is not even a secondary evidence and in that view it is no legal evidence to prove the prosecution case. Abul Kashem vs State 43 DLR 420.

Section 164—Confessional statement—The Magistrate having admitted that after recording the confessional statement, the condemned- prisoner was sent back to the police custody, his confessional statement is to be treated as not voluntarily made. State vs Ali Kibria 43 DLR 512.

Section 164—The Magistrate while recording the confession did not record any questions and answers. But then he made real endeavor for coming to the conclusion that the statement was voluntary. The omission to record questions and answers cannot be considered as fatal defects when confession was made duly, though not recorded duly, for want of prescribed form. Facts stated in the confessional statement appear to be consistent with the evidence of PWs. In that view, the confessional statement is true as well. State vs Kalu Bepari 43 DLR 249.

Section 164—Credibility of confessional statement—No substantial compliance would cure the defect of noncompliance with the provisions of section 164 CrPC on material points. Confessional statement in a plain paper without the narration of questions and answers would not, by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happened, how he warned and gave time for reflection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s j believing the same to be voluntary ought to be treated as conclusive evidence of facts stated J therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389.

Section 164—Confessional statement of appellant Dablu runs counter to the prosecution case.

The whole story is inconsistent with the “confessional statement of the appellant—PW 2 changed the version in Court which differs from the FIR about the number of participants in the murder.

Circumstances of the case—PW 4 statement differs from the confessional statement of appellant Dablu rendering it contradictory to each other. Mizazal Islam vs State 41 DLR (AD) 157.

Section 164—The shivering condition in which the accused made confession indicated that he was subjected to threat and torture before he was produced for recording the confession. His conviction though could be based on the retracted confession, even if it was uncorroborated, is illegal when it appears to be neither voluntary nor true. Sanwar Hossain vs State 45 DLR 489.

Section 164—When an accused is under threat of being sent back to the police remand he is likely to make confession out of fear. His statement in such a position should not be considered as voluntary. Nazrul Islam vs State 45 DLR 142.

Section 164-Previous statement, use of—The statement of a witness made u/s 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in Court (per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253.

Section 164-If a statement recorded under this section is true and voluntary, the same alone is sufficient for convicting the confessing accused. Retraction of confession is immaterial once it is found to be voluntary and true. Bakul Chandra Sarker vs State 45 DLR 260.

Section 164-The Magistrate having not followed the requirement of law while recording the alleged confession of the accused and the columns were not properly filled in by him and as such, the genuineness of the confessional statement was rightly challenged. Belal alias Bellal vs State 54 DLR 80.

Section 164—Copies of section 164 CrPC statements cannot be granted to the accused before the filing of the charge-sheet. Mobarak Hossain alias Jewel vs State 54 DLR 135.

Section 164-To allow an accused an access to documents like the statements under section 164 of the Code, before filing charge-sheet, may prejudice the investigation before submission of the police report an accused is not entitled to get copies of the statements recorded under section 164 of the Code. Mobarak Hossain alias Jewel vs State 54 DLR 135.

Section 164-In the attending facts and circumstances of the case when the veracity of the confessional statement is questionable, the same enjoys no presumption of correctness under section 80 of the Evidence Act. Belal alias Bellal vs State 54 DLR 80.

Section 164-Established legal position is that statement under section 164 CrPC can be used against its maker if it is found to be true, voluntary and inculpatory in nature—Statement under section 164 CrPC cannot be used against any other co-accused without any corroborative evidence and circumstances. Zakir Hossain vs State 55 DLR 137.

Section 164—Due to prayer for police remand with petition for recording statements under section 164 CrPC and non asking of any question to the accused that if they confessed or not they would not be sent to the custody of police there will be no reasonable scope to presume that there will be apprehension and lingering fear in the minds of accused of what might happen to them in the event of their going back to police custody. Alam Kabiraj vs State 55 DLR 273.

Section 164—Statement recorded behind the back of the accused the same cannot be treated as substantive evidence against him. Such statement can be used to corroborate or to contradict a statement made in the court in the manner provided in sections 145 and 157 of the Evidence Act. Hobi Sheikh vs State 56 DLR 383.

Section 164-A statement made by a witness under section 164 CrPC can only be used by the accused for the purpose of cross examining in the manner provided by section 145 of the Evidence Act. State vs Nazrul islam @ Nazrul 57 DLR 289.

Section 164-The conviction on confession alone can be maintained if it is found inculpatory in nature, true and voluntary. Gour Chandra Pal vs State 59 DLR 17.

Section 164—The confessional statement could not be said to be voluntary since it was recorded three days after the accused was arrested and certainly after illegal detention in police custody. State vs Md Roushan Mondal 59 DLR 72.

Section 164—The Tribunal appears to have used 164 statement of PW 60 as a piece of evidence. This is a gross illegality. Such statement was recorded by the Magistrate behind the back of the accused persons, it can never be used as substantive evidence against them in any way. State vs Kajal Ahmed Jalali 59 DLR 345.

Section 164—From the confession it transpires that accused Shahjahan made confessional statement being fully aware of its consequence and his repentance led him to make the confession as he killed the mother of his friend. Admittedly, police did not arrest accused Shahjahan who voluntarily surrendered and made the confession at the earliest possible time. During recording of the confessional statement accused Shahjahan did not complain of any torture by the police while in custody and the Magistrate also did not find any marks of assault on the person of accused Shahjahan and no such endorsement is found in Exhibit 6, confession. Shahjahan Ali (Md) @ Md Shahjahan vs State 59 DLR 396.

Section 164-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.

Section 164-From the form of the recording statement, it is clear that the Magistrate did not state when she started recording the statement. How much time she allowed the accused for reflection. So, on scrutiny of the above confessional statement, it is difficult for us to hold that the same recorded in full compliance with the provision of 164(3) of the Code of Criminal Procedure and that the same is not voluntary and true. Bashar vs State 60 DLR 347.

Sections 164 & 241A—To frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial Court is not obliged to consider the statements of any witness recorded under section 164 CrPC. Forhad Hossain vs State 50 DLR 337.

Sections 164 & 342—The witnesses deposed disclosing involvement of petitioner Mamun in the meeting of conspiracy and the occurrence of bomb blast resulting in the murder of the two Judges—In his examination under section 342 CrPC he admitted to have committed the offence and he felt proud being able to kill the judges according to the premeditated plan of his leader—His confessional statement and admission before the Court coupled with evidence on record proved the case against him Per Amirul Kabir Chowdhury J dictating the Full Court Judgment. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36.

Sections 164, 342 and 364—The Court is required to see not only that the forms under sections 164 and 364 of the Code of Criminal Procedure were complied with but the substance underneath was equally adhered to. There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In the circumstances it is difficult to deny the accused an opportunity to cross-examine the Magistrate who allegedly recorded the statements. Sadeque @ Sadequr Rahman vs State 61 DLR 498.

Sections 164 & 364-Presumption as to confession—Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the facts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to—There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD) 186.

Sections 164 and 364-All the formalities in recording the confessional statement were observed. The magistrate recording the confessional statement was satisfied that the confession was voluntary and free from taint. Facts revealed in confession substantially corroborate the prosecution story. State vs Mizanul Islam 40 DLR 58.

Sections 164 and 364-No hard and fast rule as to the time to be given to the accused for reflection before confession. Ratan Kha vs State 40 DLR 186.

Sections 164 and 364—Confession— Statement not recorded in the language of the maker but in the language of the Magistrate—Accused admitted nothing. State vs Abdur Rashid 40 DLR (AD) 106.

Sections 164 and 364-Giving of remand of the confessing accused after recording his confessional statements is against the principle of law and as such the prosecution cannot get any benefit out of the confessional statements. Shah Alam vs State 52 DLR 566.

Sections 164 & 533—Confession—Noncompliance with provisions for recording confession, effect of—In a case of non-compliance with the provisions of section 164 CrPC on material points, no question of any substantial compliance would arise. Certificate given by the Magistrate as to what had happened, how he warned, gave time for reflection, yet how the accused insisted on making the confessional statement ought to be treated as conclusive evidence of facts therein unless shown to be otherwise.

Section 533 CrPC is the curable section but it would not cure a non-compliance if the error had injured the accused in the defence on merits. Thus, when the statements were not even’ read out to him or could not possibly be read over to him for him to admit or to deny or to examine its correctness or not even shown to him and signed by him, specially when the said are made against his interest and would be used against him, it could not be said that the said would be cured under section 533 CrPC. Abdul Hakim vs State 43 DLR 291.

Sections 164 and 537—The recording Magistrate did not make any genuine effort to find out the real character of the confession.

Omissions in the filling up of many paragraphs cast serious doubt upon the voluntary character of confessional statement.

On a careful perusal of the confessional statement we are satisfied that the recording Magistrate did not make any genuine effort to find out the real character of the confession which he recorded. The omissions to fill up the above mentioned paragraphs are not mere omissions curable under section 537 CrPC and the manner in which the confession was recorded casts serious doubt as to the voluntary character of the statement. Azad Shaikh vs State 41 DLR 62.

Sections 164 & 374—Part of the confessional statement found true may be accepted by the Court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted.

Learned Sessions Judge could reject a part of the confessional statement if he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court fmds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121.

Sections 164,342 & 537—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57.

Section 164-The allegation has also been brought for misuse the privilege of ad-interim bail because the accused petitioner use to threaten the victim over telephone to withdraw the case which is enough to prove the misuse the privileges of bail at this stage. Masud Mahiuddin vs State, 64 DLR 145

Section 164-In lodging the FIR and handing over the convict after 27 hours of his arrest when the police station is only half kilometer away from the place of occurrence, creates reasonable doubt about the veracity of the prosecution case and manipulation of the prosecution case cannot be ruled out particularly in view of the evidence adduced by the defence witnesses. Dolon vs State, 64 DLR 501

Section 164- The convict was present at the time of occurrence and took part in the killing of the victim by standing guard while, according to him, other accused persons killed the victim. He not only stood guard but also took part in the jubilation along with all the other assailants. It. therefore, cannot be said that the confes- sion was exculpatory, or that the common intention to kill the victim was absent in the case of the petitioner. Mishon Chandra Das vs State, 68 DLR (AD) 392

Section 164-A confession made by an accused in connection with another case is found to be relevant in connection with other case and if the offences committed in course of the same transaction and if the confession has been duly recorded in accordance with law. Secondary evidence after fulfillment of the requirements of section 66 may be adduced to prove the confession and if the person making the confession is accused in both or all the incidents of commission of offences. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Sections 164 and 342-Second confessional statement of Shahid though has been accepted by the Adalat and also the High Court Division as voluntary and true, we are unable to accept this second confessional statement of Shahid as voluntary and true. Accused Shahid, imme diately after making of second confessional statement, filed application retracting the second confessional statement and also stating that what he stated in his Ist confessional statement was true. During trial of the case the accused Shahid, in his 342 statement, again disowned second confessional statement stating to the effect that he alone murdered Shajneen and no other accused person was involved in that occurrence. Syed Sajjad Mainuddin Hasan @Hasan vs State, 70 DLR (AD) 70

Section 164(3)- From the form on which the confessional statement was recorded, it appears that accused Bhola and Jahangir were kept in the custody of police personnel before recording their state- ments. Hence, it could be said that these two accused persons were still under apprehension of threat from the police, especially since they had been produced from police custody where they had spent time on remand ordered by the Court. The judicial confessions were rightly left out of consideration by the High Court Division. Sikha Rakshit vs Paritosh Rakshit, 70 DLR (AD) 1

Section 164(3)-No doubt, non- compliance of the vital procedures vitiated the confessional statement and, as such, the same can not be treated as a valid piece of evidence either to convict its maker or to corroborate any other evidence. Chunnu vs State, 65 DLR 127

Section 164(3) Once a confessional statement is taken to be voluntary and true, belated retraction has no value. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386

Section 164(3)-Retraction of a confession has no bearing whatsoever if it was voluntarily made so far the maker is concerned. It is, however, very weak type of a fact like any other fact and it cannot be the basis for conviction of co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 164(3)- If the confessional statement is found true and voluntary, it can form the basis for conviction even if retracted so far the maker is concerned but it cannot be used against co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader@ Mobile Kader, 67 DLR (AD) 6

Section 164(3)-Whenever it is noticed that, all the legal mandatory formalities in recording the confessional statement are duly observed and the Magistrate who recorded the confessional statement is satisfied that the confession is voluntary and free from all taint in that case, such confession can be the sole basis of conviction of the confessing accused. State vs Md Sukur Ali, 68 DLR 155

Section 164(3) There was no earthly reason to make any untrue statement on the part of the witnesses, or to publish false news in all the electronics and print media together. The condemned prisoner, made confessional statements, which also prove countless blows on the victim. State Md Rafiqul Islam alias Shakil, 70 DLR 26

Sections 164(3) and 342-Shahid in his 342 statement, evidently tried to conceal the fact of rape though in his own carlier two confessional statements he narrated elaborately how he caused rape to victim Shajneen. Considering the evidence including the own confessional statements of Shahid both the tribunal and the High Court Division did not give any reliance on the very belated statement of Shahid which he made under section 342 of the Code and rightly found that victim Shajneen was raped before murder. Syed Sajjad Main- uddin Hasan Hasan vs State, 70 DLR (AD) 70

Sections 164(3) and 364-One of the essential elements of any confessional statement is that it must be voluntary. In order to gauge that the statement is voluntary, the Magistrate must ensure that the confessing accused is free from any fear and that he is making his statement without any inducement or duress. It is, therefore, important that the Magistrate ensures that there is no police presence, which might act as a threat or perceived threat to the confessing accused. Sikha Rakshit va Paritosh Rakshit. 70 DLR (AD) 1

Sections 164 & 364—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das vs State 51 DLR 466.

Sections 164 & 533—The recording of the statement on a foolscap paper and mere omission of endorsement cannot be considered as fatal defect. The breach of the provision of law, if any, is a technical one and by that the evidentiary value of the confessional statement cannot be blown away. The defect is very much curable under section 533 of the Code of Criminal Procedure. Syed Ahmed vs Abdul Khaleque 51 DLR 43.

Section 164(2)—The act of recording confession is a very solemn act and in discharging his duties, the Magistrate must take care to see that the requirements of sub-section (2) of Section 164 are fully satisfied. State vs Babul Miah 63 DLR (AD) 10.

Section 164(3)—It is a mandatory requirement that after recording a confessional statement the recording Magistrate is required to make a memorandum to the confession containing a clause to the effect that he had warned the accused that he was no bound to make a confession, that if he makes a confession, it would be used against him, that the statement was true and voluntary, that it was recorded as per version of the maker and that it was read over to the maker after his statement was recorded which was the true and correct version and it contained a full and true account of statement made by the maker. State vs Babul Miah 63 DLR (AD) 10.

Section 164(3)—It does not appear sufficient questions were put and made understandable to the accused in their own language and proper time for reflection was not given—hence their confessions cannot be deemed to be voluntary or true. State vs Raja Abdul Majid 48 DLR 336.

Section 164(3)-Mere absence of LTI on a particular sheet (though the LTI is available on every sheet except one) and on the face of mentioning of relevant questions before recording the confessional statement informing about the consequence of such confessional statement to the confessing accused the confessional statement Exhibit4 is quite admissible in evidence. Abul Kalam Mollah vs State 51 DLR 544.

Section 164(3)—The provisions of sub section (3) of section 164 is mandatory and therefore he is required to fill up Column 7 of the form for recording confession which is a column for recording a brief statement of the Magistrate’s reason for believing that the statement was voluntarily made. State vs Babul Miah 63 DLR (AD) 10.

Section 164(3)—The confessional statement is not true and voluntary and there is no other direct or circumstantial evidence to substantiate the same, rather the prosecution particularly PW 5 Ohid Miah the alleged eye-witness embellished the prosecution story, the conviction cannot be sustained. Nuru Miah vs State 63 DLR 242.

Sections 164(3) & 364—The provisions under these two sections are mandatory and required to be strictly followed to make the confession voluntary and true and fit for reliance for convicting the accused on his confession. Abdul Hossain vs State 46 DLR 77.

Sections 164(3) and 364—Section 164(3) a mandatory provision of law. The requirement of adherence to the provisions of section 164(3) CrPC is not a mere matter of form but of substance that has to be complied with—Viewed in the light of the principles indicated above we have no hesitation to hold that the recording of the confessional statement Ext. 5(c) was not done in compliance with the requirement of sub-section (3) of section 164 read with section 364 of the Code of Criminal Procedure. Azad Shaikh vs State 41 DLR 62.

Section 164(3)-Corroborative evidence— For corroborative evidence, the Court must look at the broad spectrum of the approver’s version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration will depend upon the facts and circumstances of each case. Corroboration need not be in the form of ocular testimony of the witnesses and may even be in the form of circumstantial evidence. State vs Md Faziur Rahman Tonmoy 61 DLR 169.

Section 164(3)—In the absence of any evidence concerning the direct participation of Moti in the planning of the occurrence, it is difficult to hold that he had ‘mens rea’ in the commission of the offence. The confessional statement of the accused dated 21-4-1993 (Exhibit 6) does not indicate that the confession-recording Magistrate complied with the mandatory provision of sub-section (3) of section 164 of the Code. State vs Md Faziur Rahman Tonmoy 61 DLR 169.

Section 164(3)—The requirement of adherence to the provisions of section 164(3) of the Code of Criminal Procedure is not a mere matter of form, but substance. Section 164(3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed vs King Emperor, AIR 1936 PC 253 Before recording a confession a Magistrate is bound to make real and substantial inquiry as to the voluntariness of the confession. In so doing he must put questions to the accused with a view to find out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by somebody or whether it has been caused by any inducement, threat or promise.

A confessional statement, even if it is partly true or partly false or, in other words, does not disclose the full picture, can be used against the maker and there is no legal bar in upholding the conviction on the basis of such confession. State vs Suman Saha 61 DLR 253.

Sections 164(3) & 553—Procedure mandatory in nature—It is ex facie clear from the Exhibit 7 that the confession-recording Magistrate has not explained to the accused Tonmoy that he is not bound to make any confession and if he does so, it may be used as evidence against him. This is a very vital question to be explained by the confession-making accused. The provision of subsection (3) of section 164 of the Code is mandatory in nature. It appears from column 6 of the Exhibit 7 that the Magistrate put a question to the accused Tonmoy as to whether he is making the confession voluntarily and he has replied in the affirmative. But the non-putting of any question to the effect that the accused Tonmoy is not bound to make any confession and if he does so, it may be used as evidence against him at the trial has rendered the confession involuntary, invalid and unreliable, though it purports to be inculpatory in nature and may be true in some respects. State vs Md Faziur Rahman Tonmoy 61 DLR 169.

Sections 165 & 166(3)—The position of search by police officers of a different jurisdiction has been spelt out in section 166(3) of the Code of Criminal Procedure according to which a police officer is entitled to conduct search within the jurisdiction of another police station, if he has reason to believe that in having the place searched by the police of that place a delay would be accused and as a result evidence would be destroyed.

In such a case presumption of regularity of official acts will be invoked otherwise the purpose of the section will be defeated. If a police officer conducts a search within the limit of another police station, it may be presumed, unless otherwise proved, that reasons have been recorded by that officer that delay would have occasioned and evidence destroyed, if he had waited to have the place searched by police having jurisdiction of the place. Kamruzzaman alias Babul Sikdar vs State 47 DLR 416.

Section 164(3)-When the voluntary character of the confession and truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. A confession may form the legal basis of conviction if the court is satisfied that it was true and was voluntarily made. Aziz @ Azizul @ Azid vs State (Criminal), 73 DLR (AD) 365

Section 164(3)-If the confessional statement of the appellant made under section 164 of the Code is considered in conjunction with other evidence on record then it cannot be said that his confessional statement is true and voluntary. Shafiqul Islam vs State (Criminal), 73 DLR (AD) 189

Sections 164(3) and 342-If the appellant's age is below 16 years at the time of framing charge his trial is vitiated by the provisions of Children Act, 1974. Shafiqul Islam vs State (Criminal), 73 DLR (AD) 189

S. 164-If we accept the explanation of the learned Judge then it is clear that he refrained himself to perform his judicial task under so called pressure and he failed to over come the situation as a Judge. Nur Hossain alias Ladu Vs. State, 18 BLC (2013)-HCD-474.

S. 164-Confessional Statement-The confessional statement as has been recorded is not in the verbatim statement of the accused. The statement was recorded by the Magistrate alter gathering the facts on question and answer from the accused. Ishaque Ali Vs. State, 18 BLC (2013)-HCD-453. S. 164(3-No doubt, non-compliance of the vital procedures vitiated the confessional statement and, as such, the same can not be treated as a valid piece of evidence either to convict its maker or to corroborate any other evidence. Chunnu Vs. State, 65 DLR (2013)-HCD-127. S. 164, Confessional Statement. It is true that we have decision of our coun that a confessional statement can be accepted even in the absence of recording Magistrate. But it is by now settled that when any doubt arises as to the circumstances and nature of recording the confessional statements, the Magistrate concerned should be produced before the Court, otherwise the accused will be prejudiced... (29) The State V. Abdul Karim, 3 TLR (1013)- Page 197 

S. 164-In this confessional statement the accused respondent allegedly admitted that as per pressure of Dhan Miah he pressed the legs of the deceased. This statement does not support the story introduced by P.Ws.4, 6 and 7. Therefore we find that there are two versions regarding the admission of the accused respondent as regards his participation in the killing of Dhan Miah. Under such circumstances, it is difficult to arrive at a conclusion that this statement is true and voluntary and to act upon it. Therefore, the learned Judges of the High Court Division are perfectly justified in taking the exculpatory portion of the confession is true and accordingly disbelieved it as not voluntarily made... (18) The State Vs. Babul Miah, 3 TLR (2013)-Page-307. 

S. 164-Mr. Sharwardhi, Ieamed Deputy Attorney General, appearing on behalf of the leave petitioner, submits that the accused-respondent having been released on bail granted by the High Court Division misued the privilege of bail by giving death threats to the informant and as such, the learned Additional Sessions Judge rightly cancelled the bail of the accused-respondent on relying upon a G.D. Entry made in that regard and as such, the High Court Division should have discharged the Rule...(9) The State Vs. Mahmud Hassan alias Roni, 10 ADC (2013)-Page 706. 

S. 164-Confessional statement under Section 164: It appears from the last portion of the confessional statement that the Magistrate obtained the story by way of question and answer from the accused, which has been subsequently written by the Magistrate on his own language and as such the confessional statement was not written in the verbatim of the accused...(Para-28). Md. Ishaque Vs. The State, I Counsel (2013)-HCD-83

Section-164 The victim made a statement under section 164 of the Code of Criminal Procedure admitting that she voluntarily eloped with the accused Anowar and married him, her consent carries no value, inasmuch as, she was a minor girl. The High Court Division was correct in holding such view. A minor's consent is no con-sent in the eye of law. Since the victim was found minor on the day of occurrence, even if it is taken that she eloped with the accused Anowar...... Hannan & others =VS= The State, [1 LM (AD) 585]

Section 164- Confession It is now well settled that as against the maker himself his confession, judicial ог extrajudicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. (Per Md. Tafazzul Islam, J)....Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), [9 LM (AD) 386]

Section 164 Confessional statement- When a Magistrate records confessional statement of an accused under Section 164 of the Code of Criminal Procedure he must observe some legal formalities (i) he must give statutory warning and caution the accused that he is not bound to make a confession; (ii) the Magistrate must be satisfied on questioning the accused that the statement has been made voluntarily. After completion of recording the statement, the Magistrate must add a memorandum at the end of the confession relating to his action. If the Magistrate observes all the legal formalities in recording the confessional statement of an accused generally the confession should be treated as voluntary and true.

The prosecution has been able to prove the case beyond reasonable doubt that both the appellants murdered the deceased victims Sakina and Sohel and, therefore, we find no wrong or illegality at the finding of the High Court Division to convict the appellants for murdering Sakina and Sohel and sentencing them to death based on judicial confession. As such, the conviction and sentence passed by the High Court Division in respect of the appellants does not suffer from any kind of legal infirmities, thus it does not call for interference by this Division.

We are of the view that justice would be sufficiently met, if the sentence of death of the appellants be commuted to one of imprisonment for life. ...Abdul Mannan (Md.) VS The State, [10 LM (AD) 223]

A Section 164 Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act; but the section does not say that confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. There Lordships think that the view which has prevailed in most Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of conviction, is correct.... Alamgir Hossain =VS= The State, [10 LM (AD) 466]

S. 167(2)-The object of requiring an accused to be produced before a Magistrate is to be enable him to see that remand is necessary and also to enable the accused to make any representation he may wish to make. State Vs. Md. Aman Ullah Aman (Criminal), 18 BLC (2013)-AD-81. 

Ss. 167 and 561 A-Code of Criminal Procedure authorized a Magistrate to pass appropriate order had respect of a person who is suspected to have been involved in a cognizable offence and produced before him by the police, the High Court Division seized the proceedings of the case as a court of original jurisdiction by exercising extra ordinary powers. State Vs. Md. Aman Ullah Aman, 18 BLC (2013)-AD-31. 

S. 167(5), 173(3)(b) and 561A-There is no legal bar for holding further investigation under section 173(3xb) of the Code of Criminal Procedure. The period elapsed owing to the pendency of the several legal proceeding initiated by moth the parties should not be counted under section 167(5) of the Code. Abdul Hakim Vs, The State, 2 LNJ (2013)-HCD-309.

Section 167-It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer. Government of Bangladesh vs Mahmudur Rahman, 68 DLR (AD) 373

Section 167-The longest period for which an accused can be ordered to be detained in police custody by one or more such orders is only 15 days. Where even within the 15 days time allowed under this section the investigation is not completed, the police may release the accused under section 169. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST. 69 DLR (4D)63

Sections 167 and 169-Since a remand order is judicial order, the Magistrate has to exercise this power in accordance with the well settled norms of making a judicial order. The norms are that he is to see as to whether there is report of cogni zable offence and whether there are allegations constituting the offence which is cognizable. Non-disclosure of the grounds of satisfaction by a police officer should not be accepted. Whenever, a person is arrested by a police during investigation he is required to ascertain his complicity in respect of an cognizable offence. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Sections 167, 169, 170 and 173- The word "accused" used in section 167 and in sections 169, 170 and 173 of the Code denote the suspected offender who has not yet come under the cognizance of court. It does not rest in the discretion of the police officer to keep such person in custody where and as long as he pleases. Under no circumstances, can he be retained for more than 24 hours without the special leave of the Magistrate. Any longer detention is absolutely unlawful. The accused should actually be sent before the Magistrate; the police cannot have the accused in their custody and merely write for and obtain the special leave for such detention. Bangla desh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 167(1)- Diary should contain full unabridged statement of persons examined by the police so as to give the Magistrate a satisfactory and complete source of information which would enable him to decide whether or not the accused person should be detained in custody. Section 167(1) requires that copies of entries of the diary should be sent to the Magistrate with the object to prevent any abuse of power by the police officer. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 167(2)- If the trial of an offence commences in the court of sessions, the Magistrate does not possess any power to remiand an accused person. It is the trial court which will pass necessary orders if it thinks fit. But before the trial commences and after expiry of fifteen days time provided in sub-section (2) of section 167, the law does not permit the Magistrate to direct a suspected accused person to be detained in judicial custody. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 167(2)- A Magistrate/Judge having power to take cognizance of an offence has no power to direct the detention of an accused person in the judicial custody, if he thinks fit, beyond a period of fifteen days from the date of production in court after arrest by a police officer in respect of a cognizable offence. The Code is totally silent to deal with an accused person who is allegedly involved in a cognizable offence if the police officer fails to conclude the investigation of the case within this period. If the Magistrate has no power to direct such accused person to be detained in judicial custody, he will be left with no option other than to release him on bail till the date of submission of police report. Normally in most cases the police officers cannot complete the investigation within the stipulated period sanctioned by law and normally they take years together. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST. 69 DLR (AD) 63

Section 167(5)- Exclusion of period does not cure the legal consequences that had already crept in after the lapse of 60 days. Sohrab Ali Dewan vs State, 64 DLR 106

Section 167(5)- The expiry of the 60 days time limit went on unnoticed by the Magistrate. The investigating offence first brought the necessity for extension of the time limit after 3 months and 26 days and after expiry of the 60 days time limit. But the Magistrate had no legal authority to extend the time limit. Extension could be allowed on the last date of expiry or before that. The extension allowed was no extension in the eye of law. Sohrab All Dewan vs State, 64 DLR 106

S. 167-In a given case, an accused is required to be interrogated by the police or that the investigating officer shall be authorized to take the accused in his custody for interrogation can only be decided by a Magistrate on perusal the entries in the dairy under section 167(2). The satisfaction in this regard is that of the learned Magistrate. This satisfaction cannot be replaced by that of the High Court Division ......(6)  The State Vs. Md. Aman Ullah Aman (Criminal), 10 ADC (2013)-Page 447. 

See 18 BLC (2013)-AD-81.

Section 167—Order of remand—Its validity—The word ‘forward’ used in section 167 CrPC means ‘act of sending’. Unless the accused is sent to the Magistrate and the Magistrate passing the order of remand without the accused being forwarded to him, the legal requirement is not complied with for the Magistrate to assume jurisdiction to pass the order of remand. The accused must be brought before the Magistrate prior to passing of an order of remand, no matter whether the accused is in police lockup or judicial custody. Aftabur Rahman vs State 45 DLR 593.

Section 167—Law did not provide for automatic stopping of further investigation and release of the accused after expiry of the time limit nor for stopping proceedings by the Sessions Judge or Special Tribunal on such ground. Niamatullah @ Chand (Md) vs State 48 DLR 148.

Section 167—The provisions of section 167 CrPC being a procedural law, there being no express provisions for its prospective operation, shall operate retrospectively. AKM Azizul Islam vs State 9DLR (AD) 115.

Section 167—While producing a person arrested without warrant before the Magistrate, the police officer must state the reasons why the investigation could not be completed within 24 hours and what are the grounds for believing that the information received against him is well- founded. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 167—The order for detaining in police custody is passed by a Magistrate in exercise of the power given to him under subsection (2) of this section. If the requirements of sub-section (1) are not fulfilled, the Magistrate cannot pass an order under sub-section (2) for detaining a person even in jail not to speak of detention in police custody. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 167—Though the provisions empower the Magistrate to authorise the detention in police custody, no guideline has been given in sub-sections (2) and (3) as to the circumstances under which detention in police custody may be authorised. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 167—Entries in the Diary—It is for the Magistrate to decide on certain materials placed before him such as the material contained in the diary relating to the case whether or not the detention of the accused was necessary. In coming to the conclusion the Magistrate has to exercise his judicial mind and only when the Magistrate did apply such a mind, it could be said that the order made for detention is a valid order. Saifuzzaman vs State 56 DLR 324.

Section 167—Remand order should be made in presence of the accused in view of the expression “forwarded” used in sub-section (2) of section 167 of the Code. Saifuzzaman (Md) vs State 56 DLR 324.

Sections 167 & 61—An accused cannot be detained in custody of the police for a longer period than under all the circumstances of the case is reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate.

In the instant case before us, no incriminating articles, e.g. currency notes, soiled notes or stamps were recovered within the first 24 hours of arrest pursuant to any information given by accused Farook Mahajan, and so it cannot be said with an equal degree of certainty that the unlawful detention of the prisoner without any order of remand beyond 24 hours had no effect on the confession made by him. Faruque Mahajan and 4 (four) others vs State 49 DLR 47.

Sections 167 & 173—Charge-sheet submitted not upon the revival of the case under section 167 but following the further investigation under section 173 CrPC—The power to make further investigation is available to the police if there has been no order under 167 CrPC stopping the proceeding and releasing the accused after the expiry of the period of investigation under the said section. Shah Alam Chowdhury vs State 42 DLR (AD) 10.

Order of remand without forwarding the accused magistrate-Whether unless the accused is sent to the Magistrate and the Magistrate passing the order of remand without the accused being forwarded to him, the legal requirement is not complied with. Aftabur Rahman alias Zangi Vs. The State, 13 BLD (HCD) 547

Ref: 34 DLR(AD) 222; (1969) Pakistan Criminal Law Journal 873; AIR 1935 Lahore 230; 1992 Pakistan Criminal Law Journal 985 Cited

Sections 167, 173, 190 and 561A— Proceeding before a Court starts when the competent Court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the FIR has not submitted any charge-sheet. Rule for quashing the proceedings is liable to be discharged. Mokbul Hossain vs State 40 DLR 326.

Sections 167 and 364—The statement of the condemned-prisoner having been recorded on the same day after giving him only one hour for reflection of mind and with no assurance that he would not be sent back to police custody, all create a serious doubt as to the true nature of the confessional statement. State vs Harish 54 DLR 473.

Sections 167, 339C and 494-Children are entitled to trial before the Juvenile Courts and positive step should have been made to make their trial in accordance with law of Juvenile Court, not to be tried jointly with the adults. The respondents are directed to comply with the earlier direction and report compliance within six months from date. Bangladesh Legal Aid and Services Trust vs Bangladesh 57 DLR 11.

Section 167(5)—The accused-petitioner did not stand released under section 167(5) on stopping further investigation on the ground of expiry of the limitation of specified or extended period of investigation—Charge-sheet validly submitted in accordance with law. Shah Alam Chowdhuiy vs State 42 DLR 49.

Section 167(5)-Stopping of investigation being subject to order of Sessions Judge, no absolute right, not to speak of any vested right of release, could be created in favour of the accused with the passing of order stopping further investigation by the Magistrate on the expiry of specified or extended time for investigation.

In the case of Mohitullah vs State reported in 38 DLR (AD) 240 it has been held that an accused would be tried in accordance with procedure prevailing on the day trial commenced and if the procedure is changed by the time trial commenced the accused cannot claim vested right to be tried in accordance with the provisions of the repealed procedure. It is well settled that procedural law takes effect retrospectively. In this connection reference nay be made to the case reported in (1994) 14 BLD (AD) 143 (State vs Ana Mia). Sultan Ahmed vs State 47 DLR 196.

Section 167(5)—The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigating within the specified period. Amalendu Mazumder vs State 49 DLR 204

Section 167(5)—In view of the proviso to this section the period spent awaiting sanction of the government for prosecution of the accused should be added to the statutory period for submission of charge sheet. Saheb Ail Miah vs State 46 DLR 238.

Section 167(5)-At a time when the report to prosecute the petitioner was submitted there was no provision in section 167(5) of the Code of Criminal Procedure for stopping investigation of a case and releasing the accused because of non- completion of investigation within the statutory period and as such, the proceeding cannot be stopped and the accused cannot be released. Bimal Chandra Adhikari vs State 51 DLR 282.

Section 167(5)—After the amendment of the provisions of sub-section (5) of section 167 of the Code in 1992 there is no scope of stopping the investigation on the ground of expiry of time limit specified for investigation. Nazrul Islam vs State 51 DLR 368.

Sections 167(5) & 498—The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory—on the expiry of the period for investigation the accused cannot claim bail as a matter of right. Anwar Hossain (Md) vs State 48 DLR 276.

Sections 167(5), 190(1) & 561A—Quashing of proceeding under Special Powers Act—In matters of cognizance of offence triable exclusively by the Special Tribunal under the Special Powers Act initial cognizance of offence by a Magistrate in the manner provided in the Code of Criminal Procedure has no application.

In an application for quashment of proceeding on the ground of expiry of period of limitation for investigation, the provisions of section 167(5) of the Code applies only to cases in which the Magistrate can take initial cognizance and does not apply to cases exclusively triable by the Tribunal. On this ground the application for quashing is summarily rejected. Mahbubur Rahman vs State 42 DLR 375.

Section 167(6)-Sessions Judge’s power to direct further investigation—The power given to the Sessions Judge under section 167 CrPC is retrospective in nature. He can extend the period of investigation for an indefinite period or direct further investigation from time to time as occasion requires. The legislature has not put any limitation on this power. Anwar Hossain Maji vs State 42 DLR 410.

Section 167(7)—Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the Final Reported directed further investigation—Police on further investigation submitted charge-sheet for beyond the “specified period” of 60 days as stated in sec. 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision—Charge-sheet was submitted one year after the Magistrate’s order for further investigation—Accused respondents, whether entitled to be released— Provision in Section 35(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7)—Consequently the charge- sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.

Section 167(5)&(7)— Investigation of a case being matter of procedure no vested right accrued in favour of the accused. So, expiry of the time for completion of investigation cannot stop further investigation and release the accused from custody. Kitab Ali Sikdar vs State 47 DLR 509.

Section 167(7A), Proviso and 173(3B)— Revival of the investigation of a Sessions triable case beyond the period of six months of the discharge of the accused-petitioner on submission of final report.

The Police validly and legally further investigated into the case under the provisions of sub-section (3B) of section 173 CrPC with the usual leave of the Chief Metropolitan Magistrate, Dhaka from 14-7-88 as the order dated 6-9-87 duly passed by the Chief Metropolitan Magistrate under section 1 67(7A) CrPC reviving the case for investigation by the Police continued to be fully operative under the law and the Police, therefore, validly submitted charge-sheet No. 196 dated 25-8-88 in accordance with law and the Learned Sessions Judge, Dhaka has also validly taken cognizance of this offence against the accused persons. Shah Alam Chowdhury vs State 42 DLR 49.

Section 167(7), (7A)—Revival of a case after order of stopping investigation and release of the accused whether valid: Nowhere in the two subsections or the proviso it has been indicated that for revival of investigation stopped by the Chief Metropolitan Magistrate the revival within 6 months could not be made by him. In the present case the Chief Metropolitan Magistrate exercised his power to stop the proceeding under subsection (7) but he exercised a different power that was provided by sub-section (7A) for revival of the proceeding. It cannot therefore be said that he exhausted his jurisdiction after the exercise of power to stop proceedings and became functus officio. Md Arab All vs State 42 DLR 524.

Section 167(7A)—Whether Additional District Magistrate is not included within the term “District Magistrate” as contended by the petitioners’ Advocate. Faziul Hoque vs State 41 DLR 477.

Section 167(7A)—Prosecution had no alternative but to approach the District Magistrate for revival of the case under the now repealed provision of sub-section (7A) of section 167 of the Code as no other higher authority was mentioned in the said provisions. Niamatullah @ Chand (Md) vs State 48 DLR (Criminal) 148.

Section 167 (7A)—Ministry of Establishment’s Notification bearing No. MF/JAIII/ VEST/84-377 dated Dhaka 17-10-84 vested all powers of District Magistrate in Additional District Magistrates. Fazlul Hoque vs State 41 DLR 477.

Sections 167(7A) & 339C—On a plain reading of the provision of section 339C the District Magistrate’s authority and jurisdiction arises to revive the case under section 167(7A) on and from the date on which the order of stopping investigation and release of the accused persons is actually passed and not from the date when such order of stopping proceeding and release of the accused should have been passed or deemed to have been passed. Hamizuddin vs State 40 DLR 287.

Section 167- Shown arrest Writ petitioner has been shown arrested in a good number of cases and some of the order sheets have been placed before this court. On perusal of the order sheets. We have noticed that the police officers have not complied with the provisions of section 167 of the Code of Criminal Procedure while praying for showing him arrested and repeatedly made petitions showing him arrested in many cases and the Magistrate passed mechanical orders applications. 

It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer. Government of Bangladesh & others =VS= Mahmudur Rahman & another, [1 LM (AD) 100]

Section 167(1)- Section 167(1) of the Code provides that whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police-station or the police- officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Government shall authorize detention in the custody of the police.

(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.

(4) If such order is given by a Magistrate other than the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, he shall forward a copy of his order, with his reasons for making it to the Chief Metropolitan Magistrate or to the Chief Judicial Magistrate to whom he is subordinate.

(4A) If such order is given by a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, he shall forward a copy of his order, with reasons for making it to the Chief Metropolitan Sessions Judge or to the Sessions Judge to whom he is subordinate.

(5) If the investigation is not concluded within one hundred and twenty days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation-

(a) the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence to which the investigation relates is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Magistrate; and

(b) the Court of Session may, if the offence to which the investigation relates is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Court:

Provided that if an accused is not released on bail under this sub-section, the Magistrate or, as the case may be, the Court of Session shall record the reasons for it: Provided further that in cases in which sanction of appropriate authority is required to be obtained under the provisions of the relevant law for prosecution of the accused, the time taken for obtaining such sanction shall be excluded from the period specified in this sub-section. Explanation-The time taken for obtaining sanction shall commence from the day the case, with all necessary documents, is submitted for consideration of the appropriate authority and be deemed to end on the day of the receipt of the sanction order of the authority.]

(6)-(7A) [Omitted by section 2 of the Criminal Procedure (Second Amendment) Act, 1992 (Act No. XLII of 1992).]

(8) The provisions of sub-section (5) shall not apply to the investigation of an offence under section 400 or section 401 of the Penal Code, 1860 (Act XLV of 1860).]......Ministry of Law, Justice & Parl Afrs. =VS BLAST. [3 LM (AD) 274]

Section 167, 169, 170 and 173- Accused The word "accused" used in section 167 and in sections 169, 170 and 173 of the Code denote the suspected offender who has not yet come under the cognizance of court. It does not rest in the discretion of the Police-officer to keep such person in custody where and as long as he pleases. Under no circumstances, can he be retained for more than 24 hours without the special leave of the Magistrate under this section. Any longer detention is absolutely unlawful. The accused should actually be sent before the Magistrate; the police cannot have the accused in their custody and merely write for and obtain the special leave under this section for such detention. .....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Section 167- The Magistrate exercising his jurisdiction under section 167 performs judicial functions and not executive power, and therefore, the Magistrate should not make any order on the asking of the police officer. The object of requiring an accused to be produced before a Magistrate is to enable him to see that a police remand or a judicial remand is necessary and also to enable the accused to make a representation he may wish to make. Since a remand order is judicial order, the Magistrate has to exercise this power in accordance with the well settled norms of making a judicial order. The norms are that he is to see as to whether there is report of cognizable offence and whether there are allegations constituting the offence which is cognizable. Non- disclosure of the grounds of satisfaction by a police officer should not be accepted. Whenever, a person is arrested by a police during investigation he is required to ascertain his complicity in respect of an cognizable offence......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Section 167 and section 61- Section 167 is supplementary to section 61 of the Code. These provisions have been provided with the object to see that the arrested person is brought before a Magistrate within least possible delay in order to enable him to judge if such person has to be kept further in the police custody and also to enable such person to make representation in the matter. The section refers to the transmission of the case diary to the Magistrate along with the arrested person. The object of the production of the arrested person with a copy of the diary before a Magistrate within 24 hours fixed by section 61 when investigation cannot be completed within such period so that the Magistrate can take further course of action as contemplated under sub-section (2) of section 167. Secondly, the Magistrate is to see whether or not the arrest of the accused person has been made on the basis of a reasonable or complaint information has been received credible or a reasonable suspicion exist of the arrested persons having been concerned in any cognizable offence. Therefore, while making an order under sub-section (2) the Magistrate must be satisfied with the requirements of sections 54 and 61 have been complied with otherwise the Magistrate is not bound to forward the accused either in the judicial custody or in the police custody. Ministry of Law. Justice & Parl. Afrs, VS BLAST. [3 LM (AD) 274]

Sections 167, 54- Guidelines to be followed law enforcing- responsibilities of the law enforcing agencies in case of arrest and detention of a person out of suspicion who is or has been suspected to have involved in a cognizable offence. .....Ministry of Law, Justice & Parl. Afrs. VS BLAST, [3 LM (AD) 274]

Section 167- Responsibilities of Law Enforcing Agencies-

(1) Law enforcement agencies shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.

(II)In the performance of their duty, law enforcement agencies shall respect and protect human dignity and maintain and uphold the human rights of all persons.

(III) Law enforcement agencies may use force only when strictly necessary and to the extent required for the performance of their duty.

(IV) No law enforcement agencies shall inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor shall any law enforcement agencies invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

(V) The law enforcing agencies must not only respect but also protect the rights guaranteed to each citizen by the constitution.

(VI) Human life being the most precious resource, the law enforcing agencies will place its highest priority on the protection of human life and dignity.

(VII) The Primary mission of the law enforcing agencies being the prevention of crime, it is better to prevent a crime than to the resources into motion after a crime has been committed. Ministry of Law, Justice & Parl. Afrs. -VS- BLAST, [3 LM (AD) 274]

Sections 167(1)/(2) & 54- Guide lines for the Law Enforcement Agencies-

(i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum.

(ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and the place in custody.

(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcing officer to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is staying.

(iv) Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the law enforcing officer's custody or in the judicial custody under section 167(2) of the Code.

v) No law enforcing officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act, 1974.

(vi) A law enforcing officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.

(vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor.

(viii) If the person is not arrested from his residence or place of business, the law enforcing officer shall inform the nearest relation of the person in writing within 12 (twelve) hours of bringing the arrestee in the police station.

(ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.

(x) When any person is produced before the nearest Magistrate under section 61 of the Code, the law enforcing officer shall state in his forwarding letter under section 167(1) of the Code as to why the investigation cannot be completed within twenty four hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary B.P.Form 38 to the Magistrate. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Sections 167(2) and 169 Guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of an offence-

(a)If a person is produced by the law enforcing agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per section 167(2) of the Code, the Magistrate or the Court, Tribunal, as the case may be, shall release him in accordance with section 169 of the Code on taking a bond from him.

(b)If a law enforcing officer seeks an arrested person to be shown arrested in a particular case, who is already in custody. such Magistrate or Judge or Tribunal shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case and if that the prayer for shown arrested is not well founded and baseless, he shall reject the prayer.

(c)On the fulfillment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person as required under section 167(2) and if the case is exclusively triable by a court of Sessions or Tribunal, the Magistrate may send such accused person on remand under section 344 of the Code for a term not exceeding 15 days at a time.

(d)If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above.

(e) The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report disclose that the arrest has been made for the purpose of putting the arrestee in the preventive detention.

(f)It shall be the duty of the Magistrate/Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under section 167 of the Code.

(g)If the Magistrate has reason to believe that any member of law enforcing agency or any officer who has legal authority to commit a person in confinement has acted contrary to law the Magistrate shall proceed against such officer under section 220 of the Penal Code.

(h)Whenever a law enforcing officer takes an accused person in his custody on remand, it is his responsibility to produce such accused person in court upon expiry of the period of remand and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct for the examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhumation of the dead body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place.

(i)If there are materials or information to a Magistrate that a person has been subjected to 'Nirjatan' or died in custody within the meaning of section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of 'Nirjatan' and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-moto under section 190(1)(c) of the Code without awaiting the filing of a case under sections 4 and 5 and proceed in accordance with law....... Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Section 167(3)- Sub-section (3) of section 167 requires that when the Magistrate authorises detention in police custody, he should record his reasons for so doing. The object of this provision is to see that the Magistrate takes the trouble to study the police diaries and to ascertain the actual conditions under which such detention is asked for. The law is jealous of the liberty of the subject and does not allow detention unless there is a legal sanction for it. So in every case where a detention in police custody is ordered the Magistrate should state his reasons clearly. He should satisfy himself (a) that the accusation is well-founded, and (b) that the presence of the accused is necessary while the police investigation is being held. The mere fact that the police state that the presence of the accused is necessary to finish the investigation, is not sufficient to order detention. To order a detention of the accused in order to get from him a confessional statement or that he may be forced to give a clue to stolen property is not justified. Similarly it is improper to order detention in police custody on a mere expectation that time will show his guilt or for the reason that the accused promised to tell the truth or for verifying a confession recorded under section 164 or for the reason that though repeatedly asked the accused will not give any clue to the property...... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST. [3 LM (AD) 274]

Section 169- The entries in the diary afford to the Magistrate the information upon which he can decide whether or not he should authorise the detention of the accused person in custody or upon which he can form an opinion as to whether or not further detention is necessary. The longest period for which an accused can be ordered to be detained in police custody by one or more such orders is only 15 days. Where even within the 15 days time allowed under this section the investigation is not completed, the police may release the accused under section 169...... Ministry of Law, Justice & Parl. Afrs. -VS- BLAST. [3 LM (AD) 274]

Section 169—Section 169 of the Code of has not given the Police Officer any power to judge the credibility of the witnesses and to decide the defence plea of alibi. Abdur Rouf vs Jalaluddin 51 DLR (AD) 22.

Sections 169, 202(1), (2B)—Interpretation of statute—Whether order of discharge of the  accused by the Magistrate on receipt of final report (true) is in a way like releasing the accused by the Investigating Officer under section 169 CrPC on the ground of deficiency of evidence. Shah Alam Chowdhury vs State 42 DLR 49.

Section 171(1)(2)—The police officer who has investigated the case shall be responsible for the attendance of witnesses at the trial. Daily Star and Protham Alo Patrika vs State 53 DLR 155.

Section 172—The Case Diary of an Investigating Officer which is not a public document cannot be made public by swearing affidavit. Bangladesh vs Dr Shamima Sultana Rita 54 DLR (AD) 151.

Section 172—A case diary maintained by the Police cannot be treated as substantive evidence but it may be used for the purpose of ascertaining the truth or otherwise of the evidence appearing in the case. Abdus Sukur Miah vs State 48 DLR 228.

Section 172 Diary The 'diary' referred to in sub-section (1) is a special diary referred to in section 172 of the Code read with regulation 68 of Police Regulations, Bengal. Regulation 68 provides the custody of case diary as under: "68. Custody of case diaries.

(a) Only the following police officers may see case diaries:-

(i) the investigating officer;

(ii) the officer in-charge of the police station:

(iii) any police officer superior to such officer in-charge;

(iv) the Court officer:

(v) the officer or clerk in the Superintendent's office specially authorized to deal with such diaries;

and (vi) any other officer authorized by the Superintendent.

(b) The Superintendent may authorize any person other than a police officer to see a case diary.

(c) Every police officer is responsible for the safe custody of any case diary which is in his possession.

(d) Every case diary shall be treated as confidential until the final disposal of the case, including the appeal, if any, or until the expiry of the appeal period.

(e) A case diary shall be kept under lock and key, and, when sent by one officer to another, whether by post or otherwise, shall be sent in a closed cover directed to the addressee by name and superscripted -Case diary. A case diary sent to the Court office shall be addressed to the senior Court officer by name.

(f) A cover containing a case diary shall be opened only by the officer to whom it is addressed, except as prescribed in clauses (g) and (h) if such officer is absent, the date of receipt shall be stamped upon the cover by the officer left in charge during his absence and the cover shall be kept till his return or forwarded to him.

(g) Covers containing case diaries received in the Superintendent's office shall be opened as prescribed in regulation 1073, and made over directly to the officer or clerk specially authorized to deal with case diaries. Such officer or clerk shall take action under clause (i) and personally place the diaries before the Superintendent or other officer dealing with the case.

(h) Covers containing case diaries received in the Court office may be opened by any officer specially authorized in writing by the Court officer or by a superior officer.

(i) When an officer opens a cover containing a case diary, he shall stamp or write on the diary the date, if any, which has been stamped on the cover under clause (f) or, if there is no such date on the cover, the date on which he received it, and shall, after perusing the diary, file it with any other diaries relating to the same case which are in his possession.

A Circle Inspector and a Court officer shall stamp or write such date on every page of the diary and on every enclosure received with it, such as statements recorded under section 161, Code of Criminal Procedure, maps and the brief.

(j) Every Investigating Officer shall be provided with a deed box, and every Circle Inspector, Sub-divisional Police Officer and Court officer with a suitable receptacle, in which to keep case diaries under lock and key. Ministry of Law, Justice & Parl. Afrs. VS BLAST, [3 LM (AD) 274]

Section 172- The object of use of special diary under section 172 of the Code has been well explained by Edge,CJ. in Mannu, ILR 19 All 390 "the early stages of investigation which follows on the commission of a crime must necessarily in the vast majority of cases to be left to the police and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary for the protection of the public against criminals for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false or misleading, which was obtained from day to day by the police officer who investigating the case and what were the lines of investigation upon which the police officer acted." .......Ministry of Law, Justice & Parl. Afrs. -VS-BLAST. (3 LM (AD) 274]

Section 172- Section 172 relates to the police diary made in respect of a case under inquiry or trial by the court which calls for it. It is incumbent upon a police officer who investigates the case under Chapter XIV to keep a diary as provided by section 172 and the omission to keep the diary deprives the court of the very valuable assistance which such diary can give......Ministry of Law, Justice & Parl. Afrs. VS-BLAST, [3 LM (AD) 274]

Section 172- Diary without any apparent failure-In most cases, the police officers have developed a bad habit of writing case diary long after conclusion of investigation or after a few days of the investigation. It is not at all a promising approach when the police officers follow such procedure. This is a compulsory requirement for an investigation officer to record the case diary without any apparent failure. The case diary must refer to the proceedings in investigation of an alleged offence. Section 172 of the Code clearly states:-

"Every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary.............Ministry of Law, Justice & Parl Afrs. -VS- BLAST. [3 LM (AD) 274]

Section 172 Record the case diary- A case diary is written as the investigation progresses. It is, therefore, obligatory to record the case diary every day when investigation is taken place. The writing up of the case diary must not be held up at the end of the day. It is always wise to write up the case diary in the place where investigation is conducted. The quick and immediate writing up of case diary helps recording every little detail of the investigation properly. This sort of case diary truly reflects the nitty-gritty of the police investigation. The case diary needs to be recorded as the case advances during the course of investigation...... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Section 172- Case diary- Keeping case diary under safe custody is an important task - Keeping case diary under safe custody is an important task. The case diary is the picture of the entire result of the investigation and other particulars regarding the topography of the place of occurrence, the probability of approach of the offender to the scene and the direction of retreating and the location of the probable witnesses etc. The activities of the police investigation officer can very well be looked after by the senior police officers going through the records of the case diary. ......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, (3 LM (AD) 274]

Section 172- The case diary must include entries of necessary information for each of the days The language used is day by day and therefore, it is mandatory duty for such officer to record every day's progress of the investigation. The case diary must include entries of necessary information for each of the days when investigation is in progress. Sometimes the investigation officers neglect the examination of the witnesses on the first day of the visit of the place of occurrence and after consuming days together record the statements in a single day. This process is totally unauthorised. In every case the investigation officers must record the statements of the witnesses present expeditiously on the first day or the following day if the FIR discloses the names of the witnesses who are acquainted with the facts of the case. Section 157 of the Evidence Act in an unambiguous language stated that the admissibility of a previous statement that should have been made before an authority legally competent to the fact 'at or about the time', when the fact to which the statement relates took place. The object of this section is to admit statements made at a time when the mind of the witness is still so connected with the events as to make it probable that his description of them is accurate. But if time for reflection passes between the event and the subsequent statement it not only can be of little value but may be actually dangerous and as such statement can be easily brought into being. ......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Section 172 

Political rivalry

Nothing which does not fall under one of the above heads need be entered, but all assistance rendered by members of Union Parishads shall be noted. When the information given by a member of a Union Parishad is of a confidential nature, his name shall not be entered in the case diary, but the investigating officer shall communicate his name and the same time note briefly in the case diary that this has been done. This is an obsolete provision and in the present circumstances, the assistance as mentioned above is redundant because of political rivalry...... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]

Section 172(1)- Every detail in connection with the investigation into the offence must clearly be recorded without fail. It is to be noted that in section 172(1) of the Code the word "Shall" has been used which definitely indicates "mandatory". So, a case diary must be recorded and all the details as mentioned in the section 172(1) of the Code must be recorded without any failure by the police officer in charge of investigation of an offence. .....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Section 172-It is incumbent upon a police officer who investigates the case under Chapter XIV to keep a diary as provided by section 172 and the omission to keep the diary deprives the court of the very valuable assistance which such diary can give. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63

Section 173-It is a settled principle of law that the ownership or title to a certain property cannot be decided by any Criminal Court. Besides, the investigation officer has no authority to decide the ownership of the excavator merely by submitting an enquiry report. The Chief Metropolitan Magistrate and the Additional Metropolitan Sessions Judge acted beyond their jurisdiction in handing over the possession of the excavator in favour of the informant basing on the report of the investigating officer. Abdur Razzak Liton (Md) vs State, 66 DLR 334

Section 173-FIR named accused Yousuf Ali Mridha has some involvement in the offence alleged along with the other accused but not sending up the said FIR named accused by investigation officer is not acceptable by this court, therefore, a departmental proceeding should be brought against the investigation officer by the Durnity Daman Commission and the Special Court must consider the matter. The proceeding of the case shall continue against said Yousuf Ali Mridha. The learned Metropolitan Senior Special Judge, is hereby directed to continue the proceeding of the case and trial thereof by including Yousuf Ali Mridha as an accuse Abdul Wadud Bhuiyan (Md) vs State, 67 DLR 435

Section 173-Filing of naraji and the application for further investigation after acceptance of the report under section 173 of the Code are misconceived attempt. Moreover, Commission cannot file a naraji petition against a report of investigation which was done or conducted by itself. Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380

Section 173-All the inquiries/ investigations will be conducted behind the back of the accused person, and the trial of a criminal case shall be commenced and then continued in presence of the accused. Before commencing trial, all the steps taken by the investigating officers and the Magistrate's are the part of inquiries/ investigations, which require to be carried out without notifying the accused. Dr Akhtaruzzaman vs State, 70 DLR 513

Section 173-At the investigation/ inquiry stage, a Magistrate should not exclude the name of any person who has been charge-sheeted by the 10 or whose name comes up in the judicial inquiry. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618

Section 173-Naraji Petition-When a naraji petition is filed against the police report the same should be disposed of in accordance with law. Khurshida Begum vs Monira Begum, 64 DLR 91

Section 173-The investigation conducted by the 10 was incomplete and further investigation should be directed for securing the ends of justice. Mahbubur Rahman vs State, 64 DLR 265

Section 173-10 submitted his investigation report on the basis of insufficient examination of relevant persons and document with regard to the two vital issues. The first one is about the surplus status of the 11 accused-petitioners. The other vital issue is with regard to the alleged forgery in the nomination letter containing the signature of the concerned Deputy Secretary. Mahbubur Rahman vs State, 64 DLR 265

Sections 173 and 498-Anticipatory bails shall not survive post charge-sheet stage. Durnity Daman Commission vs Dr. Khandaker Mosharraf Hossain, 66 DLR (AD) 92

Sections 173 and 537-Investigation held by the junior officer the appellant has become seriously prejudiced which cannot be cured by the provision of section 537 of the Code, Sazzak Hossain vs State, 64 DLR 113

Sections 173 and 561A-The investigating officer having found no evidence oral or documentary whatsoever in support of the alleged beating of demanding dowry. It is found that the tribunal without assigning any reason whatsoever giving a goby to the martial aspects of the final report took cognizance against the accused-appellant and others on the basis of a naraji petition filed by the informant. Alamgir Matubbar (Md) vs State, 70 DLR 809

Sections 173 and 561A-Non- speaking order-Mere omission to assign reasons in the impugned order is not fatal, if in law the order is sustainable. To justify the impugned order, we have carefully examined the entire materials on record including the first information report, final report, notice under section 7(1) of the Muslim Family Ordinance, talaknama, it appears that the materials on record are plainly insufficient to think that there are reasonable grounds exist for believing that the accused appellant has been guilty of the offence alleged. Alamgir Matubbar (Md) vs State, 70 DLR 809

Section 173- Re-investigation or a further investigation is a matter of semantics-Appellate Division helds that there is no gainsaying that the Code of Criminal Procedure does not provide for reinvestigation of any case. Whether or not the investigation done in any case subsequent to the submission of a charge sheet after the initial investigation is completed, con is "reinvestigation" the or result of a "further a investigation" is a matter of semantics. The question that may be posed is whether or not there would be any prejudice if instead of calling it "reinvestigation", the second investigation was termed "further investigation", which is allowed by the law. Under normal circumstances, if on the basis of fresh evidence a supplementary charge sheet is submitted, for example by adding names of accused person(s) who had not been included in the initial charge sheet, there would be no questioning the legality of the supplementary charge sheet. That clearly is the purpose of section 173 (3B) of the Code......Abul Bashar Chowkidar =VS Abdul Mannan & others, [1 LM (AD) 541]

Section 173- Further investigation- The informant lodged an FIR making specific allegations against the accused persons and the case started on that FIR. The police investigated into those allegations and submitted final report, but the learned Magistrate, considering the application filed by the informant against that final report and the materials on record including the FIR, without accepting that final report, ordered for a further investigation by judicial Magistrate, which was not illegal at all.....Mahmud Miah =VS=The State, [10 LM (AD) 430]

Section 173(3B)-

Further investigation Unless an extraordinary case of gross abuse of power is made out by the investigating agency, the Court should be quite loathe to interfere with the investigation, a field actively reserved for the investigating agency and the executive. The expression 'further investigation' as used in 173(3B) is distinguishable from reinvestigation. Further is additional, more, supplemental. Further investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation. Here in this case in his prayer the petitioner, inter alia, prayed, শুধুমাত্র দরখাস্তকারী আসামী নিজের নামে অর্জিত স্থাবর ও অস্থাবর সম্পদ বিবেচনা নিমিত্তে পূনঃতদন্তে প্রেরনের আদেশ দানে আপনার একান্ত মর্জি হয়।" We do not find any provision in the law for holding পূনঃতদন্ত of the case at the instance of the accused person. The point raised by Mr AJ Mohammad Ali can be taken as defence of the case at the time of holding trial. We do not find any substance in this petition. .....Dr Khandaker Mosharraf Hossain =VS= State, [5 LM (AD) 238]

Section 173—The Police can file supplementary charge-sheet even after acceptance of the previous charge-sheet. There is no limitation in this regard to taboo in the law. Sultan Ahmed alias Sentu vs State 48 DLR 143.

Section 173 and 190 of the Code of Criminal procedure:

It is settled Principal of law that initiation of a criminal proceedings starts after taking cognizance of offence. Submission of charge sheet cannot be treated as finality of investigation until cognizance of the offence is taken by the appropriate court. ...(Para 18)

Section 561A of the Code of Criminal procedure:

The Rule issuing Bench of the High Court Division overstepped in its jurisdiction in not considering that the petitioner filed the application under section 561A of the Code of Criminal Procedure without surrendering to the jurisdiction of the appropriate court and thus illegally entertained the application under section 561A and stayed further proceedings of the case. (Para 21)

Section 561A of the Code of Criminal procedure:

It is well settled that when a person seeks remedy from a court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under section 561A of the Code of Criminal Procedure, he/she ought to submit to due process of justice. The Court would not Act in aid of an accused person who is a fugitive from law and justice. (Para 22)

Article 27 of the Constitution of Bangladesh:

As per Article 27 of the constitution all citizens are equal before the law and are entitled to equal protection of law. The judges of the apex court have taken oath to administer justice in accordance with law without fear or favour. The judiciary must stand tall and unbend at all circumstances, even in adverse situation. The judiciary should not create a precedent which cannot be applicable for all. Each and all of the citizens are entitled to get equal treatment from the court of justice. There is no high or low before the court of law. (Para 24) [17 SCOB [2023] AD 54]

Section 173—There cannot be any reinvestigation into a case after charge-sheet is submitted. Mubashwir Au vs State 46 DLR 535.

Section 173—There is no provision in the Code of Criminal Procedure entitling the accused persons to file an application to the Magistrate for further investigation or reinvestigation into a case in which charge-sheet has already been submitted against them.

In the case of Sukhil Kumar vs State reported in 47 DLR 252 =15 BLD 311 distinction between further investigation and reinvestigation with reference to earlier decisions was considered and it was held that prayer for further investigation made by the accused persons against whom charge sheet has already been submitted is nothing but a prayer for reinvestigation in the name of further investigation and the same cannot be allowed. We, therefore, find merit in this Rule Shajahan All vs Belayet Hossain 47 DLR 478.

Section 173—In the name of further investigation police cannot make reinvestigation of the case and discharge the accused person against whom charge-sheet has already been submitted. Moslemuddin vs State 47 DLR 420.

Section 173

Their irresponsible work and faulty investigation comes in limelight from everywhere, specially with regard to an important document sketch-map of the place of occurrence, when admittedly the homestead of the deceased Tofazzal is the place of occurrence. The investigating officer who prepared the sketch-map and index has mentioned the place of occurrence as residence of Choru Miah. ......(45) [73 DLR 18]

 

Section 173—Section 27 of the Special Powers Act is a departure from the provision if section 173 of the Code of Criminal Procedure— Special Tribunal alone is empowered to take cognizance of the offence on the report of a Police Officer of the rank of Sub-Inspector and hold trial on the same— Sections 26 and 27 of the Special Powers Act provided for special machinery for investigation and trial by special tribunal. Taslima Begum vs State 42 DLR 136.

Section 173-If the investigation officer fails to mention proper section in charge-sheet or in his report, the court is empowered to take cognizance under proper section on consideration of the facts and circumstances of the case. Alauddin vs State 54 DLR 564.

S. 173-Conduct of the investigating officer-It proves that investigating officer did not investigated the case properly because Pw. 3 stated that he and Kamal together observe the occasion and he hide in Kamal's shop. Now a days we find investigation of the cases has been done ominously without any commitment. The investigating officers should be trained properly so that they can held or done investigation without fear favouring no one and for that we suggesting the Government to open academy for training up investigating officers.  The State & Ors Vs. Tajul Islam & Ors 21 BLT (2013)-HCD-218. 

Ss. 173 and 561A-Section 561A of the Code cannot be utilized to quash an investigation work of the police. Sadek Hossain (Md.) Vs. State, 18 BLC (2013)-HCD-278

Further Investigation Re-investigation

Reinvestigation in the name of further investigation is not contemplated in law. There cannot be any re-investigation into a case in which charge-sheet has already been submitted-Cr.P.C. 173

Mubashwir Ali and others Vs. The state, 14BLD(HCD)566 Ref: 37 DLR (HCD) 185, 27 DLR (HCD) 342: 31 DLR (AD) 69, 35 DLR (AD) 127: 36 DLR (AD) 14; 37 DLR (HCD) 182; 34 DLR (AD) 222; 39 DLR (AD) 1: 38 DLR (AD) 41 Cited

 

Further investigation

The police has power to make further investigation in respect of an offence even after submission of a charge-sheet in respect of an accused against whom fresh evidence has been collected in the course of further investigation. But the Magistrate has no power to direct further investigation in respect of the accused persons against whom charge-sheet has already been submitted. In the name of a further investigation the police has no power to cancel a charge-sheet in order to submit a final report in respect of an already charge-sheeted accused person- Cr.P.C. 173(38) Golam Mostafa and others Vs. The State, 14BLD(HCD)S81 Ref: 36 DLR 63: 27 DLR 342-Cited

 

Further investigation

Further investigation and supplementary charge sheet

A superior police officer appointed under section 158 of the Code may direct further investigation, pending the order of the Magistrate, under sub-section (2) of section 173 Cr.P.C. Further investigation may also be held under sub-section (3B) of section 173 after submission of police report under sub-section (1) of section 173 of the Code, if the Officer in-Charge of the police station obtains further evidence in the case. Further investigation on the prayer of the accused persons is not contemplated in law. Sukhil Kumar Sarkar Vs. The State and ors, 15 BLD (HCD) 311

 

Further investigation

From a reading of section 156 together with section 190 (1) Cr.PC it appears that a Magistrate instead of taking cognizance him- self of an offence upon receiving a complaint. may send the same to the police for investigation by treating it as the FLR. The final report submitted by police under section 173 Cr.PC. is never upon the Magistrate. Instead of accepting the final report, the Magistrate may, either on his own motion or on receipt of a naraji petition from any affected person direct the police to make further investigation Sukhil Kumar Sarkar Vs. The State and ors, 15BLD(HCD) 311

Ref: 27DLR (HCD) 342; 37 DLR (HCD) 185 Cited

 

Further investigation

Re-investigation under the garb of further investigation is not contemplated in law Since the police after usual investigation of the case submitted chargesheet against the accused persons the order of the Government, at the instance of the accused, for further investigation of the case by the C.LD. designed to set at naught the already submitted charge- sheet under the garb of further investigation is not contemplated in law. Abu Talukder Vs. The Secretary, Ministry of Home Affairs and others, 16BLD (HCD) 615

 

Further investigation

Section 173(38) of the Code empowers the police officer to hold further investigation in a case where a report has already been submitted and the subsequent report will be treated as a police report within the meaning of section 173(1) of the Code of Criminal Pro- cedure. Abdus Samad Khan and others Vs. The State and another, 17BLD(HCD) 436

 

Further investigation

Although evidence was forthcoming regarding the complicity of some accused per- sons in the alleged murder but the investigating officer (10.) wrongly excluded them from the charge sheet. The High Court Division directed the police to hold further investigation into their case. Section-173(3B)

The State Vs. Monwara Begum, 18BLD (HCD) 102

Malafide vitiates everything

Even a malafide investigation cannot be allowed to stand. Mubashwir Ali and others Vs. The State and another, 14 BLD (HCD) 566

Ref: 37 DLR (HCD) 185; 27 DLR (HCD) 342; 31 DLR (AD) 69; 35 DLR (AD) 127; 36 DLR (AD) 14; 37 DLR (HCD) 182; 34 DLR (AD) 222; 39 DLR (AD) 1; 38 DLR (AD) 41-Cited

Section 173—There is no scope of filing a final report meaning not sending up any accused for trial and then a separate report for sending up some other accused for trial as one report is sufficient to serve both the purposes. Abdur Rouf @ Rab Howlader vs State 55 DLR 202.

Section 173-After investigation in respect of the relevant allegations the police submit a report under section 173 of the Code. If the report contains sufficient materials for taking cognizance by a Magistrate, it is commonly known as a charge-sheet. But a mere police report has got no bearing on the question of conduct of an accused. Air Marshal Jamaluddin Ahmed (Retd) vs Bangladesh 57 DLR 1.

Section 173—Charge-sheet being a police report is not admissible in evidence and as such the case has no legs to stand. This is nothing but an abuse of the process of the Court and, it can be safely held this case is preposterous one and barred by law and outcome of the evil desire of the then ruling Government being dictated and guided by the Four Parties alliance and, as such, continuation of the proceedings will be an abuse of the process of the Court. Dr Kamal Hossain vs State 63 DLR 204.

Sections 173, 190—There is nothing either in section 173 or in section 190 of the Code providing for ejection or acceptance of a police report. There is also nothing to show that such police report is binding upon a Magistrate. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529.

Sections 173 and 190—There is no statutory requirement to lodge suo motu a first information report and register another case thereupon on the result of successful investigation. Abdur Rouf @ Rab Howlader vs State 55 DLR 202.

Sections 173 and 205C—The expression “Police Report” in this section means the report under section 173 of the Code. It is obvious from section 205C that when a Magistrate receives charge-sheet and an accused appears or is brought before him, the Magistrate shall send the case to the Court of Session if it appears to him that the case is exclusively triable by the Court of Session. The Magistrate has no option to decide whether charge-sheet was properly submitted. Ibrahim vs State 53 DLR 533.

Investigation

It authorises the police officer to carry on further investigation into a case even after submission of chargesheet under section. 173(1) Cr.P.C. if further evidence is avail- able-Code of Criminal Procedure, 1898 (V of 1898) Section. 173(3B) 

Rahamatullah Vs. The State and another, 16BLD(AD)88

 

Investigation

Further Investigation on the seeking of an accused

An accused has no right to apply for further investigation of a case by the C.I.D. after of chargesheet against him. Moreover, this being purely an executive action the Government is free to decide which particular case will be investigated by the C.I.D. Abu Talukder Vs. Bangladesh and others, 16BLD(AD)222

Sections 173 & 439A—So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction.

Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this Court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the ambit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.

It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time honored and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of justice and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path.

Per Latifur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh. Sher Ali vs Stale 46DLR (AD) 67.

Section 173(3A) & (3B)—Before conclusion of trial the Investigating Officer may send further report if new and important evidences are available which may be considered by the Court during trial. Rahmatullah vs State 48 DLR 158.

Section 173(3B)—By further investigation the police officer can bring to the notice of the Court additional facts and even prosecute persons against whom charge-sheet was not submitted earlier.

But the police in the name of further investigation cannot exclude the persons against whom charge-sheet had already been submitted. In the present case supplementary charge-sheet having been filed against the FIR named accused persons excluded in the earlier charge-sheet we find no illegality in this case. Ear Ali (Md) vs State 47 DLR 405.

Police Report

The prosecution is required under the provisions of section 173(3A) of the Code of Criminal Procedure to send the Court the report together with the statement recorded under sections 161 and 164 Cr.P.C. The accused shall be entitled to get the copies thereof before the hearing under section 265B of the Code. Non-compliance with this requirement of law causes prejudice to the defence. The prosecution must not play hide and seek. However when the copies of statements under sections 161 and 164 of the Code are supplied to the accused before hearing under section. 265B Cr.P.C. the defect is cured. Major (Retd) Bazlul Huda Vs The State, 20 BLD (AD) 236

 

Police Report

While considering the police report (FRT) the Special Tribunal heard the learned Advocates of the parties and on perusal of the case record and the case diary took cognizance of the case on the finding that a prima facie case was made out by the prosecution against the accused persons. Since the Tribunal could not agree with the opinion of the Investigating Officer and took cognizance of the case on the basis of materials before him, the learned Tribunal acted within his competence. No exception can be taken to it. Bilkish Miah Vs. The State, 17BLD (AD) 297

 

Police Report

The Magistrate is not bound to accept a police report submitted under section 173 Cr.P.C. recommending discharge of the accused persons. If the Magistrate finds that there are prima facie materials on record to proceed against the accused, he may reject the recommendation of the police and take cognizance against accused persons under section 1190(b) Cr.P.C. Abu Bakar and others Vs. The State, 16BLD(HCD)283

 

Police Report

Under section 173 (3B) of the Code of Criminal Procedure the Police has a right to file supplementary report or reports, known as a supplementary chargesheet, when it obtains further evidence, oral or documentary, after submission of his report under sub-section I of section 173 Cr.P.C. For such a report, he is not required to obtain any permission from the Court. RahmatUllah Vs. The State and another, ISBLD(HCD) 357

Section 173(3B)—The police may make further investigation in respect of an offence after submission of a report and submit a further report or a supplementary charge-sheet in respect of any accused against whom evidence has been collected during further investigation, but the Magistrate has no power to direct further investigation in respect of accused persons against whom the police has once submitted a charge- sheet just to obtain a final report, nor can the police, after further investigation, submit final report in respect of a person against whom a charge-sheet was once submitted. Golam Mostafa vs State 47 DLR 563.

Section 173(3B)—When it is not provided in the law itself as to under whose order a Police officer may hold further investigation, no illegality was committed by the Police officer concerned in holding further investigation on the order of his superior officer. Idris alias Jamai Idris vs State 52 DLR 184.

Section 173(3B)—A witness once narrating the occurrence without implicating the appellant with the offence in any manner cannot be permitted to depose for the second time with a view to implicating the accused and play double standard. Ruhul Amin Kha vs State 56 DLR 632.

Section 173(3B)—The CID committed no error of law in holding further investigation as per provision of section 173(3B) of the CrPC. Had further investigation been done after the case record was transmitted to the Senior Special Judge after taking cognizance of the offence or passing any order whatsoever then permission of the Special Judge would have been necessary. The police had the power to hold further investigation as per provision of section 173(3B) of the Code as the provision of this section is in no way derogatory to the provision of sub-section 5(6) of the Criminal Law Amendment Act, 1958. Abdus Samad Khan vs State 50 DLR 143.

Section 173(3B)—The provision does not have any scope for the Sessions Judge to direct further investigation by the police. The order of the Sessions Judge directing further investigation on an application by the informant is without jurisdiction and is liable to be set aside. Abdul Malek vs Payer Ahmed Chowdhury and State 46 DLR 455.

Section 173(3B)—The Government’s decision to withdraw a case from the Criminal Investigation Department after withdrawing the earlier order for investigation by the CID is not illegal. Abu Talukder vs Bangladesh 49 DLR (AD) 56.

Section 173(1)(3B)- Section 173(1) (3B) of the Code allows for further investigation and submission of a further report with further evidence, oral or documentary in respect of an offence, even after a report had been forwarded to the Magistrate under section 173(1) of the Code. Abul Bashar Chowkidar va Abdul Mannan @ Khademul Islam, 66 DLR (AD) 286

Section 173(3B)-The phraseology "further investigation" has been used only in the sub-section 3B of section 173, after submission of the police report, at any point of time before pronouncement of judgment, the same may be carried out by the police. Dr Akhtaruzzaman vs State. 70 DLR 513

Section 173(3B)- Upon receipt of the police report submitted by the 10, if the Magistrate finds that the investigation has been done by the IO in a perfunctory manner, the Magistrate may direct further investigation without even receiving a 'naraji application' or 'objection' from the informant-side. If the Magistrate receives a naraji application, s/he may order for further investigation without examining the complainant (informant) under section 200 treating the same simply as an objection against the police report. Dr Akhtaruz- zaman vs State, 70 DLR 513

Section 173(3B)-While, after submission of the police report, the OC of the concerned police station of his own volition or being directed by his higher authority may investigate further in the case under section 173(3B) and submit the report of the further investigation (supple- mentary charge-sheet) before the trial Court through the Public Prosecutor at any point of time before pronouncement of the judgment, however, the Magistrate is competent to pass an order upon the police for further investigation only before acceptance of the police report, s/he cannot direct further investigation after accepting the police report, for, the Magistrate becomes functus officio by transferring the case to the trial Court after accepting the police report. Dr Akhtaruzzaman vs State, 70 DLR 513

Sections 173(3B) and 561A-If the result of the further investigation tallies with the findings of the High Court Division, in that event only, the trial Court is allowed to commence trial against the non-charge-sheeted person. While the High Court Division is competent to direct the Magistrate through the trial Court to investigate further into the matter, however, the High Court Division or the trial Court has not been bestowed with the power to directly ask the Magistrate to take cogni- zance. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618

Section 173(3B)- The Durnity Com- mission Commission is at liberty to hold further investigation into the case and submit report and for that purpose no formal order is needed from the Court, Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380

Section 173(3B)-The investigating officer does not require any permission from the court concerned for further investigation and hence after completion of further investigation filing of supple- mentary charge-sheet does not suffer from any illegality. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115

Section 173(3B)-Final report-narazi -further investigation-The investigation of crime is carried out dehors the mandate contained in the Code containing sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under section 173(3B). Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120 Section 173(3B)- Since the order of discharge neither amounts to an acquittal nor to a final order, the accused can be proceeded against for the same offence on the basis of supplementary report submitted on holding further investigation or on the basis of naraji petition filed by the informant/complainant. It is no longer res integra that the Court, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120

Section 173(3B)- Under normal cir- cumstances, if on the basis of fresh evidence a supplementary charge-sheet is submitted, for example by adding name of accused person (s) who had not been included in the initial charge-sheet, there would be no questioning the legality of the supplementary charge-sheet. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115

Section 173(3B)- Although the initial charge-sheet was submitted against only one accused person, upon finding prima facie evidence against him, he still remains an accused in spite of the so called "reinvestigation" of the case whereby the petitioner before us has been additionally named an accused, prima facie evidence having been found against him in the subsequent investigation. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115

Section 173(3B)-Further Investiga- tion-At any stage of the proceeding if it appears that further investigation is required for collection of further evidence the case can be sent for further investigation. The accused petitioners have no authority to challenge the impugned order inasmuchas by the order of further investigation, they have not been prejudiced. They without seeking their redress to the lower jurisdiction, have directly sought their redress to this court, revision is not maintainable. Pannu @ Md Pannu Mia vs State, 67 DLR 18

Sections 173(3B) and 561A-If the result of the further investigation tallies with the findings of the High Court Division, in that event only, the trial Court is allowed to commence trial against the non-charge-sheeted person. While the High Court Division is competent to direct the Magistrate through the trial Court to investigate further into the matter, however, the High Court Division or the trial Court has not been bestowed with the power to directly ask the Magistrate to take cogni zance. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618

Section 173(3B)-The Durnity Com mission Commission is at liberty to hold further investigation into the case and submit report and for that purpose no formal order is needed from the Court, Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380

Section 173(3B)-The investigating officer does not require any permission from the court concerned for further investigation and hence after completion of further investigation filing of supple mentary charge-sheet does not suffer from any illegality. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115

Section 173(38)- Under normal cir- cumstances, if on the basis of fresh evidence a supplementary charge-sheet is submitted, for example by adding name of accused person (s) who had not been included in the initial charge-sheet, there would be no questioning the legality of the supplementary charge-sheet. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115

Section 173(3B)-Although the initial charge-sl eet was submitted against only one accused person, upon finding prima facie evidence against him, he still remains an accused in spite of the so called "reinvestigation" of the case whereby the petitioner before us has been additionally named an accused, prima facie evidence having been found against him in the subsequent investigation. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115

Section 173(3B)-Further Investiga- tion-At any stage of the proceeding if it appears that further investigation is required for collection of further evidence the case can be sent for further investigation. The accused petitioners have no authority to challenge the impugned order inasmuchas by the order of further investi- gation, they have not been prejudiced. They without seeking their redress to the lower jurisdiction, have directly sought their redress to this court, revision is not maintainable. Pannu @ Md Pannu Mia vs State, 67 DLR 18

Section 173(3B)-Section 173 (3B) of the Code has given power to the police to submit supplementary charge sheet on further investigation against any person/ persons, even who has earlier discharged on final report, if it obtains further evidence. Salina Islam Beauty vs State, 68 DLR 59

Section 173(3B)-Prosecution is always at liberty to cause further investi gation to be made if it is required for ends of justice. The initial investigating officer, without collecting evidence required by law, simply recommended for discharge on the basis of the statements of the accused persons, recorded under section 161 of the Code. Commission had no other alternative but to pass an order for further investi gation asking him to unearth facts behind the deal involving huge public money. Anti-Corruption Commission, being a prosecuting agency rightly passed an order of further investigation in a case involving huge public money as has been sub-section (3B) of section 173 of the Code empowered by sections 19 and 20 of the দুর্নীতি দমন কমিশন আইন-২০০৪। Begum Khaleda Zia vs State, 68 DLR 277

Section 173(3B)-There is at least a clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under section 409/109 read with section 5(2) of the Prevention of Corruption Act, 1947. Begum Khaleda Zia vs State, 68 DLR 277

Section 173(2)(3B)- Sub-sections (2) and (3B) of section 173 have clearly spelt out about the further investigation and further investigation presupposes a prior police report and that must be by one investigation agency at a time and not by two investigation agencies. State vs Secretary, Ministry of Public Adminis- tration, 67 DLR (AD) 271

Section 173(3B)-Final report-narazi further investigation-The investigation of crime is carried out dehors the mandate contained in the Code containing sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under section 173(3B). Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120

Section 173(3B)-Since the order of discharge neither amounts to an acquittal nor to a final order, the accused can be proceeded against for the same offence on the basis of supplementary report submitted on holding further investigation or on the basis of naraji petition filed by the informant/complainant. It is no longer res integra that the Court, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120

Section 174—A perusal of section 174 of the Code indicates that the object of the proceeding is merely to ascertain whether a person died under suspicious circumstances or an unnatural death and, if so, what is the apparent cause of death. The question regarding the details of death is foreign to the ambit and scope of proceeding under section 174. Babul Sikder vs State represented by the DC 56 DLR 174.

S. 174 read with Evidence Act, 1872, S. 60

Section 174 Cr PC speak preparation of inquest can be alone only by the officer in-charge of a police station, any one specially empowered by the Government. In the instant case it has been done by an S.I. of police, nor by officer-in-charge. S.I. of police of a police station can investigate a case but can not prepare inquest report and since officer-in-charge did not prepare the inquest report, it stands as an improper piece of paper nor admissible in evidence. The State & Ors Vs. Tajul Islam & Ors, 21 BLT (2013)-HCD-218.

Sections 176 and 197—Meaning of taking cognizance of offence—Stage of determination of guilt when reaches under section 176 CrPC— difference between “prosecuted” without prior sanction under section 6(5) and “taking cognizance” without prior approval. Matiur Rahman vs State 40 DLR 385.

Section 176- Section 176 of the Code enables a Magistrate to hold inquiry into a suspicious death. The language used in this section does not depend merely upon the opinion of the police officer but that there should be a further check by a Magistrate to hold an independent inquiry. The object of holding inquiry is to elucidate the facts of unnatural death before there is any reasonable suspicion of the commission of any offence and when such grounds exist, the inquiry comes under Ain of 2013. ......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]

Sections 177 and 179—Criminal trial — Interpretation of the provisions of section 179 of the Code of Criminal Procedure—Territorial jurisdiction of the Criminal Court—Offence of forgery took place in Noakhali but trial being held in Comilla—In view of the provision of section 179 CrPC the Court of competent Magistrate of Noakhali district where false documents were made and the Court of Additional District Magistrate, Comilla where consequences ensued had both jurisdiction to try the offence of forgery complained of. Jagenath Chandra Bakshi vs State 42 DLR 238.

Sections 177-180—The offence under section 138 of the Act can be completed with the concentration of a number of facts i.e. (i) drawing of the cheque, (ii) presentation of the cheque, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of receipt of the notice. As per provisions of sections 177, 178, 179 and 180 of the Code of Criminal Procedure if the aforesaid five different acts were done in five different localities any of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under section 138 of the Act and complainant can choose any one of the Courts in whose jurisdiction any of the 5 components of the said offence was done. The legal notice was issued from a lawyer at Chittagong District Bar and the complainant, for encashing the cheques, presented the same at a Bank at dliittagong. As such, on the ground of initiating the proceeding at Chittagong this proceeding cannot be quashed. Abdul Aiim vs Biswajit Dey 59 DLR 236

Section 179—Applicability of section 179 CrPC to the offences defined in section 463 Penal Code—provisions of section 463 PC analyzed. Two essential ingredients of section 463 PC pointed out—both the competent Criminal Courts at Noakhali and Comilla have jurisdiction to try the offence. Jagenath Chandra Bakhi vs State 42 DLR 238.

Section 179(c)—Since in the sequel of the criminal acts of accused Nos. 3 and 4 by way of obtaining signatures of the complainant in blank papers at Jeddah money was withdrawn in Bangladesh, a Criminal Court of competent jurisdiction in Bangladesh can take cognizance in the case in accordance with illustration (c) of section 179 of the Code. Abdus Sattar vs State 50 DLR (AD) 187.

Section 188—It was obligatory on the part of the Magistrate to make a written complaint about the nature of the order made by him which was alleged to have been disobeyed and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 Penal Code. Abdul Ahad@ Md Abdul Ahad vs State 52 DLR 379.

Sections 188 & 196—The alleged offence having been committed in India, the trial of. the case in question cannot be proceeded with without sanction of the Government for the purpose in view of the proviso to section 188 of the Criminal Procedure Code and sanction obtained in his case under section 196 of the Code cannot do away with the requirement of proviso to section 188.

This sanction however can be accorded by the Government even after cognizance has been taken of the case if it is found desirable. Since the cognizance of the case has been taken upon a petition by an order of the Government in accordance with section 196 of the Code of Criminal Procedure the complaint case itself need not be quashed. In this view of ours we are fortified by the decision in the case of Ranjit vs Sm Parul Hore, and another reported in 1980 CrLJ Noc 57 (Cal); (1979)1 Cal FIN 414. Dr  Taslima Nasrin vs Md Nurul Alam 48 DLR 280.

 

Section 188- Section 188 of the Code is not at all applicable in this particular case; rather it is inconsistent with the provisions of section 20(1)and 32 of the Anti-Corruption Commission Act, 2004 and section 4(4) and 6(1) of the Criminal Law Amendment Act, 1958. (PER M ENAYETUR RAHIM JAGREEING WITH MD FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41

Section 188-The proviso of section 188 of the Code that no charge as to any such offence shall be enquired into in Bangladesh except with the sanction of the Government, the provision has been made without expressly declaring about what shall, be the consequence of non- compliance of the proviso, it has not been said that for non-compliance, that is for want of sanction of the Government, the proceeding will be invalid or null and void and in absence of the declaration of any consequence for non-compliance, the very proviso is not mandatory. It is merely directory. (PER MD FARUQUE J) Giasuddin al-Mamun vs State, 65 DLR 41

Section 188-The proviso of section 188 of the Code is not mandatory. (PER MO FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41

Section 188- There is no scope to hold that the sanction of the Government is mandatory to make inquiry of the offence of the case as per section 188 of the Code. (PER ENAYETUR RAHIM J) Mafruza Sultana vs State, 66 DLR 280

Section 188-The provisions of section 188 of the Code is not at all applicable in this particular case; rather it is inconsistent with the provisions of section 20(1) and 32 of the Anti-Corruption Act, 2004 and section 4(4) and 6(1) of the Criminal Law Amendment Act, 1958. (PER M ENAYETUR RAHIM J) Mafruza Sultana vs State, 66 DLR 280

Section 188-Neither in the Anti- Corruption Act, 2004 nor in the Criminal Law Amendment Act, 1958, has any provision been made requiring the sanction of the Government to take cognizance or enquire into the offences under these Acts by a Special Judge. As per sub-section 4 of section 4 of the Criminal Law Amendment Act, 1958 offences being committed outside Bangladesh, shall be deemed to have been committed within the territorial limits of the jurisdiction of the Special Judge in Bangladesh in which the person, committing the offence is found or was ordinarily residing before he left Bangladesh. (PER M FARUQUE J) Mafruza Sultana vs State, 66 DLR 280

Section 188-There was no scope to hold that sanction of the Government was mandatory to make inquiry of the offence of the case as per provision of section 188 of the Code. Section 188 of the Code was not applicable to this particular case and rather it was inconsistent with the provision of sections 20(1) and 32 of the Ain, 2004 and sections 4(4) and 6(1) of the Act, 1958. Mafruza Sultana vs State, 67 DLR (AD) 227

Sections 188 and 344-In exercising the provision of section 344 of the Code there is no scope to postpone or stop the proceedings of the case for sine die or in other words to quash the proceedings as has been sought by the petitioner. (PER M ENAYETUR RAHIM JAGREEING WITH MD FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41

S. 188-Section 188 of the Code is not at all applicable case; rather it is inconsistent with the provisions of section 20(1) and 32 of the Anti-Corruption Commission Act, 2004 and section 4(4) and 6(1) of the Criminal Law Amendment Act, 1958.

(Per M Enayetur Rahim J agreeing with Md Faruque J) Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41. 

S. 188-The proviso of section 188 of the Code that no charge as to any such offence shall be enquired into in Bangladesh except with sanction of the Govemment, the provision has been made without expressly declaring about what shall, be the consequence of non-compliance of the proviso, it has not been said that for non-compliance, that is for want of sanction of the Government, the proceeding will be invalid or null or void and in absence of the declaration of any consequence for non-compliance, the very proviso is not mandatory. It is merely directory. Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41. 

S. 188-The proviso of section 188 of the Code is not mandatory, (Per M Enayetur Rahim Jagreeing with Md Faruque J) Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41.

S. 188 and 344-In exercising the provision of section 344 of the Code is no scope to postpone or stop the proceedings of the case for since die or in other words to quash the proceedings as has been sought by the petitioner (Per M Enayetur Rahim J agreeing with Md Faruque J). Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HOD-41 

Section 190—Sessions Judge cannot take cognizance of a case against the accused sent up in the supplementary charge-sheet without cognizance being taken by the Magistrate. Sultan Ahmed alias Sentu vs State 48 DLR 143.

Sections 190 & 436—A Court of Session has no power to take cognizance of any offence as a Court of original jurisdiction and the Magistrate having power to take cognizance of any offence has exclusive power to take cognizance of an offence and to issue process irrespective of any offence, either he has power to hold trial of the case or not. Ziaul Hoque Chowdhury vs State 58 DLR 193.

Section 190(1)(b)—A naraji petition is a complaint for all practical purposes and if a Magistrate having power to take cognizance of the offence is satisfied on examination of the complainant that the complaint discloses an offence he can take cognizance of the offence, against the accused under section 190(1)(b), irrespective of an offence which is exclusively triable by a Court of Session. Ziaul Hoque Chowdhury vs State 58 DLR 193.

Sections 190, 155 & 537—Non cognizable offence—Mere irregularity like investigation by an officer not authorised to investigate a non–cognizable offence does not affect the legality of a proceeding of a Court below.

Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.

Sections 190 and 193—Orders passed by the Sessions Judge starting from registering the complaint as petition case upto the orders date directing the Assistant Superintendent of Police for further enquiry are without jurisdiction. Eman Ullah vs Abdul Kader 54 DLR 623.

Sections 190, 195 and 196—198—Provisions in section 195 like the provisions in sections 196-198 CrPC are exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence under section 190 of the said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul Hai Khan vs State 40 DLR (AD) 226.

Sections 190, 200 and 202—An enquiry or an investigation can be directed by the Magistrate under section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 461.

Section 190(1)—Refusal to take cognizance against some of the accused persons amounts to dismissal of the complaint as against them and application filed before the learned District Judge by the complainant is maintainable.

Magistrate’s power of taking cognizance under section 190(1) in all cases, including those exclusively triable by a Court of Sessions, has remained unaffected by (the repeal of the provision for committing the accused to the Court of Sessions. Syed Ahmed vs Habibur Rahman 42 DLR 240.

Sections 190(1) & 156(3)—The prayermade by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making re-investigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed All @ Subed 47 DLR 252.

Sections 190(1)(b) & 200—It appears that the naraji petition has been filed on a complaint but as an application out of apprehension that the Magistrate might accept the recommendation of the Investigation Officer. It is no more than an application to the Magistrate to be cautious and careful in considering the materials before him. Shaban All Mia, Shukur All Khandaker vs State, Md Harmuz All Mollah 48 DLR 55.

Section 190(1)(b)—The Court can, in a given case, regard the police report as a report under section 190(1 )(b) CrPC and take cognizance on that Police Report. (Relied on 10 DLR Dhaka 152). Aroj Ali Sarder vs State 41 DLR 306.

Section 190(1)(c)—Direction to the Upazila Magistrate to take cognizance. Sessions Judge left nothing for the learned Magistrate to do except taking cognizance. Quamruzzaman alias Lal vs State 40 DLR 509.

Section 190(1)(c)—Sessions Judge acted illegally in directing the Upazila “Magistrate to take cognizance of the offence. Quamruzzaman alias Lal vs State 40 DLR 509.

Section 190(1 )(c)—Cognizance of offence by Magistrate—The Magistrate has got wide power under section 190(1 )(c) CrPC to take cognizance of any offence even upon his knowledge or suspicion that an offence has been committed and to pass, in the present case, the impugned order sending the case for judicial enquiry after rejecting the police report and then taking cognizance after receipt of the enquiry report. Abdur Rashid vs State 43 DLR 279.

Section 190, 193- On reading section 190 along with section 193, there is no gainsaying that a Magistrate shall take cognizance of an offence as a court of original jurisdiction and unless he takes cognizance of the offence the accused cannot be committed to the court of session for trial. The word 'committed' has been deleted and in its place the word 'send' has been substituted. The object of the restriction imposed by section 193 is to secure the case of a person charged with a grave offence. The accused should have been given an opportunity to know the circumstances of the offence imputed to him and enabled him to make his defence. There was a provision for inquiry under Chapter XVIII of the Code and in such inquiry the accused could have taken his defence, but after the omission of the Chapter, no inquiry is held under the present provision of the Code. Even then the power of the Magistrate to take cognizance of the offence as a court of original jurisdiction has been retained. The Sessions Judge can take cognizance of any offence only after the case is sent to him for trial...... Mufti Abdul Hannan Munshi -VS- The State, [3 LM (AD) 566]

Section 190(1)(b)- The Magistrate is not bound to accept the police report-On perusal of the recommendations it is to be noted that most of the recommendations are in conformity with Part III of the constitution but some of the recommendations are redundant, some of them are not practically viable and some of them are exaggeration. As for example, a Magistrate cannot decide any case relying upon the post-mortem report of a victim. It is only if a case is filed whether it is a UD case or complaint, the police find that the death is unnatural, it can send the dead. body to the morgue for ascertaining the cause of death. In respect of UD case, a police officer compulsorily sends the dead body to the morgue for ascertaining the cause of death with an inquest report. After receipt of the report, if the police officer finds that the death is homicidal in nature, the police officer is under obligation to register a regular case. Even if after investigation the police officer does not find any complicity of accused person, the Magistrate is not bound to accept the police report. It may direct further inquiry or further investigation over the death of the victim if he finds that the death is homicidal in nature. The power of the Magistrate is not circumscribed by any condition. The Magistrate is not bound to accept the police report....... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST. [3 LM (AD) 274]

Section 190(1)(b)- Second charge sheet is not one contemplated under the law and hence it is illegal- Appellate Division is of the view that the second charge sheet is not one contemplated under the law and hence it is illegal. No trial can take place against accused Ayatun Nahar, on the basis of such illegal and palpably motivated charge sheet. Accordingly the impugned judgement and order passed by the High Court Division is modified. The direction of the High Court Division so far as it relates to Ayatun Nahar is set aside. .....Abul Bashar Chowkidar VS Abdul Mannan & others. [1 LM (AD) 541]

Sections 190 and 193-The object of the restriction imposed by section 193 is to secure the case of a person charged with a grave offence. The accused should have been given an opportunity to know the circumstances of the offence imputed to him and enabled him to make his defence. There was a provision for inquiry under Chapter XVIII of the Code and in such inquiry the accused could have taken his defence, but after the omission of the Chapter, no inquiry is held under the present provision of the Code. Even then the power of the Magistrate to take cognizance of the offence as a court of original jurisdiction has been retained. The Sessions Judge can take cognizance of any offence only after the case is sent to him for trial. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 190 read with 200, 202, 203 and 204-After examining the informant under section 200 the Magistrate was duty bound to examine the other witnesses listed in the naraji application and, thereafter, the Magistrate either could have taken cogni- zance directly under section 190(1)(a), if satisfied, or could have proceeded towards judicial inquiry. The moment the Magistrate would decide to examine the complainant (Naraji applicant) under section 200, s/he is bound either to take cognizance under section 190(1)(a) or to take steps under section 202 for judicial inquiry/investigation, inquiry/investi- gation by the police, inquiry/ investigation by the other person and, after receiving the report of inquiry/investigation from the judicial Magistrate/police/other person, the Magistrate shall either dismiss the complaint under section 203 or issue process against the accused under section 204. Dr Akhtaruzzaman vs Store, 70 DLR 513

Sections 190(1)(a) and 202-When- ever the informant files naraji petition bringing allegation of serious biasness against the police department substan- tiating strong grounds thereto and prays for judicial inquiry having come up with definite allegation against specified persons/s, the Judicial Magistrate should, at first opportunity, treat the naraji petition as a complaint petition instead of sending it to a different department of police for further investigation and, then, if satisfied, either take cognizance directly under section 190(1)(a) or take recourse to the provision of section 202 of the CrPC. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618

Section 191—The Magistrate cannot proceed with the trial himself as the offence alleged is triable in the Court of Sessions. Provision of section 191 of the Code is not applicable in the case triable in the Court of Sessions. Hifzur Rahman vs State 50 DLR 325.

Section 193—Section 193 provides that except as otherwise expressly provided no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a competent Magistrate. Bangladesh vs Yakub Sardar. 40 DLR (AD) 246.

Sections 193(1), 204, 439 and 439A—Case sent to the Sessions Court by Upazila Magistrate— Sessions Judge recorded some evidence— Prosecutor made an application for sending record to Upazila Court for taking cognizance against some persons allegediy impiicated in the offence, by the witnesses in Sessions Court—Sessions Judge made an order accordingly—Magistrate complied with the order of the Sessions Judge.

Held—Order of Sessions Judge is illegal and consequently cognizance taken of by the Magistrate thereon is illegal—The Court of Sessions or the High Court Division has no jurisdiction to interfere with the discretion of the Magistrate in the matter of taking cognizance of any offence irrespective of the fact whether the offence is triable by a Court of Sessions or not. Abdul Matin vs State 42 DLR 286.

Section 193- Another point raised in the High Court Division is that the trial of the accused Mufti Abdun Hannan is vitiated by reason of not taking cognizance of the offence by the learned Sessions Judge. The High Court Division relying upon the case of Dharmatar V. State of Horyana, (2014) 3 SCC 306, RN Agarwal V. RC Bansal, (2015) 1 SCC 48, Haripada Biswas V. State, 6 BSCR 83 held that the trial of the accused has not been vitiated for this reason. Section 193 of the Code of Criminal Procedure provides that:

"Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a Magistrate duly empowered in that behalf. (2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Government by general or special order may direct them to try or as the Session Judge of the division, by general or special order, may make over to them for trial." Mufti Abdul Hannan Munshi -VS- The State, [3 LM (AD) 566]

Sections 195(1) and 234-Since the document allegedly created by Moudud Ahmed has been filed in the suit and the writ petition, those are subject matter of the appeals and the documents have been used by the respondent in judicial proceeding The initiation of the proceeding is barred under section 195(1)(c) of the Code. Chairman, RAJUK vs Manzur Ahmed @ Manzoor Ahmed, 68 DLR (AD) 337

Section 195—The offences alleged to have been committed in connection with proceeding of a Civil Court cannot be tried by any other Court except upon a complaint by the said Court. Syed Ahmed Chowdhury vs Abdur Rashid Mridha and 15 ors 54 DLR 498.

Section 195—Section 195 includes any document produced or given in evidence in the course of a proceeding whether produced or given in evidence by the party who is alleged to have committed the offence or by anyone else. Akkas Ali Molla vs State 55 DLR 296.

Sections 195 and 198—There is no bar for an individual to making a complaint in respect of alleged defamatory statement made in a judicial proceeding—Section 198 CrPC enables an individual to file such complaint. AY Mashiuzzaman vs Shah Alam 41 DLR 180.

Sections 195 & 476—Section 476 is not independent of section 195 of the Code—Section 476 does not abridge or extend the scope of section 195(b) or (c). Abdul Hai Khan vs State 40 DLR (AD) 226.

Sections 195 & 476—When a fraudulent document is not produced in a proceeding before Court private complaint is not barred.

It is absolutely clear that unless the document is filed in Court, the Court cannot make a complaint. In the present case in view of the positive finding of the High Court Division and on the failure of the learned Advocate to show before us that, in fact, the allegedly fraudulent document was produced in Cr Case No.116 of 1983, the private complaint at the instance of the informant is not barred. Shamsuddin Ahmed Chowdhury vs State 49 DLR (AD) 159.

Proceeding

During the pendency of police investigation of a cognizable case the steps taken before the Magistrate in relation to production of the accused granting of bail etc. have been held to be proceeding before a Court and the functioning of the Magistrate in his judicial capacity. Section-195(1)(b), Cr.P.C Serajuddowla Vs. Abdul Kader and another 13BLD (AD)94 Ref: AIR 1979(SC)777; AIR 1941 (Bom) 294; 29 DLR(SC)256 Cited

Sections 195 and 476-When a question of right, title and interest relating to any immovable property is in seisin of the Court, the Anti- Corruption Department has no jurisdiction to hold any inquiry under articles 31 and 50 of Anti- Corruption Manual. Humayun Majid vs Bangladesh Bureau of Anti-Corruption 54 DLR 12.

Sections 195 & 561A—In a proceeding where a forged document has been used the Court concerned should make the complaint. The criminal Court should not take cognizance on a private complaint. The want of complaint under section 195 is incurable and the lack of it vitiates the whole trial. Wahida Khan vs Shahar Banoo Ziwar Sultan and State 48 DLR 286.

Ss. 195(1) and 561A-Filing of forged documents before the Revenue Officer acting under section 143 in mutation proceeding, does not invoke the bar under section 195(1)(c) of the Code and in such a case the Court can take cognizance on the petition of complaint filed by a private person. Aslam (MD) Vs. Md Salauddin, 18 BLC (2013)-HCD-235 

Section 195(1)—A criminal Court can take cognizance of any offence described in sections 463, 471, 475 and 476 of the Penal Code on the basis of complaint by an aggrieved party when such offence is alleged to have been committed by a party to any mutation proceeding in respect of a document produced in evidence in such proceeding. Shahera Khatun vs State 53 DLR 19.

Section 195(1)(a)—If the officer to complain is the officer also to take cognizance then there is no necessity of filing a written complaint by the same officer to himself for taking cognizance of an offence against the accused persons. Anwar Hossain vs State 48 DLR 89.

Section 195(1)(b)—Proceeding in Court—In view of the decision that a Magistrate acts his judicial capacity while discharging an accused on the basis of a final report by the Police and the reason ings in the majority judgment in 1979 AIR (SC) 777, the offence under section 211 Penal Code was committed in relation to a proceeding in Court and, as such, the bar under section 195(1 )(b) is attracted. Seraj uddowla vs Abdul Kader 45 DLR (AD) 101.

Section 195(1)(b)—Complaint of Court— Requirement—When the Magistrate considered the prayer of the Investigating Officer that he appellant be prosecuted for making a false charge and the prosecution report upon which cognizance was taken shows that the same was filed as directed by the Magistrate it is clear that the prosecution of the appellant was sanctioned by the Magistrate himself and, as such, it could not be said that the cognizance was taken in violation of section 195(1)(b). Serajuddowla vs A Kader 45 DLR (AD) 101.

Section 195(1)(c)—The view taken in AIR 1943 Nagpur 327 “all the High Courts are now agreed that once a forged document is brought then private complaints subsequent to this are barred by section 195 even in respect of anterior forgeries—anterior, that is, to the litigation”—has been consistently followed in 20 DLR Dhaka 66 & other cases. Abdul Hai Khan vs State 40 DLR (AD) 226.

Section 195(1)(c)—Legislature did not intend any anomalous situation that might arise if the trial of one offence may be made dependent upon a possible complaint by the Court while the other offence is tried upon a private complaint. Abdul Hal Khan vs State 40 DLR (AD) 226.

Section 195 (1)(c)- Share certificate are forged and has no value in the light of the expert report- In the light of the expert report with regard to the thumb impression appearing on the document of transfer of shares and considering the fact that the document prima facie appears to have been forged, we hereby direct Mohammad Mehdi Hasan, Deputy Registrar, Supreme Court of Bangladesh to lodge a complaint, before a Magistrate of the first class having jurisdiction, against the appellants, namely Reza Bin Rahman and Abdul Wahab Azad in terms of section 195 (1)(c) of the Code of Criminal Procedure for committing an offence punishable under sections 471/475/476 of the Penal Code. ...Reza Bin Rahman VS A.T.G. Mortaza, [7 LM (AD) 8]

That the certified copy of the disputed deed being No.19974 dated 31-10-2005 was produced before the Court, not the original copy of the deed. Only the production of the certified copy of the alleged deed cannot attract the provision of section 195(1)(c) of the Code of Criminal Procedure, 1898. To attract the provision of section 195(1)(c) of the Code, the original copy of the deed should have been produced before the Court, because the genuineness of the said claim i.e. the alleged deed is a forged deed and the involvement of the accused persons in the creation of the forged deed is subject to proof by examining the witnesses. When the certified copy of a deed was produced on a claim that the deed was forged and the original copy was not produced, then it was not possible to determine the genuineness of the certified deed. So, the proceeding of CR Case No.1966 of 2005 is not barred under section 195 of the Code of Criminal Procedure. [74 DLR (AD) 83]

Section 195(1)(c)—Jurisdiction of a criminal Court when barred. Which Court is empowered to take cognizance of offences in the section 195(1)(c) Abdul Hal Khan vs State 40 DLR (AD) 226.

Section 195(1)(c)—No cognizance can be taken against one of the appellants who appears to have forged the document expect on complaint by the Court. Abdul Hal Khan vs State 40 DLR (AD) 226.

Section 195(1)(c)—Private complaint, when incompetent—Ingredients of offence such as forging of a document and making use of such documents in Court by a party to the proceeding if found present in a case then the mandatory provision against filing of a private complaint comes into play. The instant proceeding initiated by the complainant opposite party is a bar under section 195(1)(c) CrPC and the Courts concerned only have sole jurisdiction to make a complaint in the interest ofjustice. Ajit Kumar Sark.er vs Radha Kanta Sarker 44 DLR 533.

Section 195(1)(c)—Prosecution for a document given in evidence—From a perusal if the provision of law it appears that the words “documents produced or given in evidence” contemplate the original documents alleged to be forged and not a certified copy of the same. If the document in question is not produced in Court, but a certified copy of the same is produced, no complaint from the Court is necessary for prosecution of the alleged offenders In view of the decision in the case of Saurnakhsingh vs King AIR 1950 (PC) 31 the absence of complaint cannot stand as a bar to the trial of the accused- petitioner in the present case for forgery relating to the sale deed produced in Court in the earlier SCC suit. Shambhu Nath Saha vs State 43 DLR 660.

Section 195(1)(c)—Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102.

Section 195(1)(c)—Use of a photo copy of the forged document could not amount to the use of a forged document.

It would appear that the photocopy of the kabala which is said to be forged by the opposite party gave only a clue or inkling to the forgery. The action brought by the opposite party against the petitioner is an action independent of the filing of photocopy of the forged document in the Court of Magistrate. Therefore, it is clear to see that we are not to depart from the views held by the superior Courts including the Privy Council that when the original forged instrument is not used in the Court section 195(i)(c) is no bar to a proceeding for forgery. Moklesur Rahman Sharif vs State, Jamiruddin Sharf47 DLR 229.

Section 195(1)(c)—Words “document produced or given in evidence’ contemplate to produce original document alleged to have been forged and not a photocopy. Abdul Gafür alias Kana Mia vs Md Nurul Islam 56 DLR 519.

Section 195(1)(c)—Forged document produced before a revenue officer not being considered as a Court does not stand as a bar for initiation of a criminal proceeding by the private person for a commission of forgery. Chitta Ranjan Das vs Shashi Mohan Das 56 DLR 276.

Section 195(1)(c)—In the instant case, in the absence of the original document being produced in the proceeding the bar under section 195(1)(c) will not apply. Abdus Sattar Pramanik vs State 56 DLR 452.

Section 195(1)(c)—Since the alleged forged document has been filed in the civil Court which is the subject matter of a suit for Specific Performance of Contract, it is for the concerned Civil Court to lodge any complaint before the criminal Court if it finds the forgery relating to the said document But since the instant proceeding in GR Case No. 190 of 2000 under sections 420/467/ 468/471 has been initiated on private complaint the same cannot continue in view of the provision of section 195(1 )(c). Abur Rahman vs State 59 DLR 683.

Code Criminal Procedure [V of 1898] 

Section 195(1)(c) and 476- The certified copy bearing the P.C No. 941 of 2009 of the above noted judgment and order shows that the application for the same was shown to be made on 12.08.2009, on its first page although the enquiry discloses that the application for the certified copy was actually made on 27.01.2010. This fraud was practised obviously to save the period of limi tation. As such, the Registrar is directed to take disciplinary action against the delinquent employees of the concerned section of the High Court Division.

The Appellate Division held that since apparently a fraud has been committed a complaint in accordance with section 195(1)(c) read with section 476 of the Code Criminal Procedure is required to be filed before the concerned cognizance Court. Under the circumstances, let one of the Deputy Registrars of the High Court, Division, be directed to file a petition of complaint in the Court of Chief Metropolitan Magistrate, Dhaka, against the applicant of the certified copy and others who are responsible for the fraud under section 195(1)(c) read with section 476 of the Code of Criminal Procedure and for taking necessary actions in accordance with law. Let the concerned original certified copy bearing P.C. No. 941 of 2009 of the judgment and order dated 11.08.2009, passed by the High Court Division in F.A. No. 249 of 1997, along with the application for the certified copy and a copy of the enquiry report dated 15.01.2011, be forwarded to the concerned Court immediately, after keeping photostat copies of all those documents in the office, duly attested by the Registrar. Rustom Ali and others Vs. Hasen Ali and others (Civil) 16 ALR (AD) 95-96

Section 195(1)(c) and (4)—Ambit of sub- section (4) of section 195 CrPC—It is therefore clear that the offences referred to in cl.(c) when committed in pursuance of a conspiracy or in the course of the same transaction, will fall within the ambit of sub-section (4) of seãtion 195 including their abetments or attempts independent of the dates of their commissions. Abdul Hye Khan vs State 40 DLR (AD) 226.

Sections 195(1)(c) and 476—Restricted application of clause (c) to be discarded—I Ain, therefore, inclined to think that reading clause (c) with section 476 of the Code, there does not seem to be any compelling reason to restrict the application of the said clause limiting the control of the Court only to few offences committed (pendente lite) as would be the practical result of such interpretation. The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding. Abdul Hye Khan vs State 40 DLR (AD) 226.

Sections 195(1)(a)(b)(c) and 476—There is specified procedure and method for filing complaint by a Court in respect of offences describçd in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of section 195 CrPC. Abdul Hye Khan vs State 40 DLR (AD) 226.

Sections 195(1)(c), 476 and 561A—No Court can take cognizance of any offence under section 467 of the Penal Code without a complaint in writing by the Court in which the document was given in evidence or by a Court to which the said Court is subordinate. Sona Mia vs State 42 DLR 8.

Section 195(2)—A Revenue Officer holding an inquiry in a mutation proceeding, in the premises, does not become a court as he does not really adjudicate a right and he does not give a decision which is binding on the parties. Shahera Khatun vs State 53 DLR 19.

Prosecution for offences against the State

Section 196 of the Code of Criminal Procedure provides that no Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Penal Code (except section 127), or punishable under section 108A, or section 153A, or section 294A, or section 295A or section 505 of the same Code, unless upon complaint made by order of, or under authority from, the Government, or some officers empowered in this behalf by the Government. Shamsuddin Ahmed and others Vs. The State and another, 20BLD(HCD) 268

Section 197—After arrest at dead of night the victim was beaten to death on his way to the Singra Police Station. He was not even shown any warrant of arrest nor any case number. Such an act of the accused-petitioners can never be said to be an act done by them while acting or purporting to act in the discharge of official duty. AbdulAwal vs State 50 DLR 483

Section 197—Previous sanction of the Government is required under section 197 of the Code of Criminal Procedure before commencing any criminal prosecution against the petitioner. Kazi Obaidul Haque vs State 51 DLR 25.

Sections 197—It appears prima facie that Md Mahabubur Rahman, the then Officer-in-Charge of Ramna Police Station on 3-3-2004, fabricated false evidence by way of making a photocopy of a GD Entry, which he attested as true copy of the GD Entry Register. Such an act by the officer-in- charge can be brought within the mischief of sections 193/ 194/195 of the Penal Code, since the evidence was used in the trial to secure conviction of innocent accused for commission of an offence involving the death penalty. It further appears that Ahmad Kamrul Islam Chowdhury, who at the relevant time was engaged in the trial of the instant case as Special Public Prosecutor, Chittagong, took positive steps to testify, to the genuineness of the attested photocopy of the GD Entry declaring that he had seen the original GD document. The falsity of their respective attestation/declaration is evident from a cursory glance at the photocopy which shows the original printed form to be upside down.

Firstly, an Officer-in-Charge of a police station does not fall in this category as Government sanction is not required for his removal from service. Secondly, in the facts and circumstances of the instant case, the provisions of section 197 would not be attracted in any event since the act alleged to have been done constituting an offence was certainly not done while acting or purporting to act in the discharge of his official duty. In no way does the act of fabricating evidence have any nexus with the official duty of the officer concerned as contemplated in section 197 of the said Code. The learned Magistrate is to take a note of this aspect of law accordingly. State vs Sajauddin 60 DLR 188.

Section 197—The evidence of the witness including the report of the inquiry held by a Magistrate leads to irresistible opinion that the offence alleged has not been committed by the accused in the discharge of their official duties and, as such, we do not find any force in the submission of the learned Advocate as to applicability of section 197 of the Code regarding the two petitioners. ASI Md Ayub All Sardar vs State 58 DLR (AD) 13.

Section 197(1)- Being illegally gained over the accused-petitioners allowed the garments factories in question to operate in the accused building in violation of the relevant rules and regulations which contributed a lot in the collapse of the building on the fateful date killing 1136 innocent persons as well as injuring more than 1169. Such illegal act or omission of the accused cannot be branded as an act done in the discharge of official duties inasmuch as it was not directly concerned with their official duties and, as such, they are not entitled to get any protection under section 197(1) of the Code. Shahidul Islam (Md) vs Sate, 70 DLR 263

Sections 198 and 199— If the provision of section 199 is allowed to be continued, then husband of a woman can compel her to yield to any sexual harassment to attain his personal gain. The provisions of sections 198 and 199 of the Code not only degraded the dignity of a woman, but the same are offending against the fundamental rights of a woman to be treated equally as well as seek protection of law. These two sections may either be deleted from the Code or be modified in a way to ensure that the victim or aggrieved woman herself can launch a prosecution against a person liable to be pro-secuted for committing offence under sections 497 and 498 of the Penal Code. Aftabuddin vs State 63 DLR 235.

Section 200—Taking cognizance of a fresh case without examining the complainant under section 200 of the Code of Criminal Procedure is illegal.

When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence. Abu Bakar vs State 47 DLR 527.

Section 200-The Tribunal disposed of the final report not on merit, but mechanically. It is now well established that naraji petition is nothing but a petition of complaint under section 200 of the Code of Criminal Procedure. On receipt of such Naraji petition, the Tribunal may take cognisance against the accused if it is found reasonable and proper or direct further investigation by higher authority or by another agency of investigation. Abdul Halim Md vs State 60 DLR 393.

Section 200-If the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention of the appellant appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the complainant, as he thinks fit. Abu Bakar vs State 47DLR 527.

Section 200-Naraji petition—Naraji petition is nothing but a petition of complaint under section 200 of the Code and on receipt of such petition Magistrate may take cognizance against

accused persons or may direct further investigation by the Police. The Magistrate is not bound by the final report and may take cognizance against the accused persons on consideration of materials on record or may direct further investigation on his own motion also. Shahjahan Ali Mondal vs Belayet Hossain 47 DLR 478.

Section 200—There is no question of prejudice to the accused-petitioner due to the irregularity of non-examination of the complainant by the Magistrate under this section before he transferred the case for judicial enquiry. Kazi Rashidur Rahman vs Md Giasuddin 48 DLR 299.

Section 200—A second prosecution of the same accused is permissible if his order of discharge was not passed earlier on merits. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 200—If cognizance is taken on the basis of a fresh complaint there can be no objection to the proceedings at all and in a proper case an application for revival also may amount to a fresh complaint. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 200-A Naraji petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a naraji petition by complying with the requirements of the Code.

By passing the order of discharge of the accused-petitioner from custody at the instance of $ie police the Magistrate did not become functus fficio and his order of discharge of the accused-petitioner from the custody at the instance of the lice cannot operate as a bar to take cognizance against the accused-petitioner. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 200-Since there is no requirement of law to record reasons for taking cognizance we find no illegality in those orders on that count. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Examination of Complainant

Examination of the informant under section 200 Cr.P.C. is necessary before sending the case for judicial enquiry and taking of cognizance. When there is a complaint case and a police case over the same occurrence, the complaint case should be tried first and the police case thereafter. There should be simultaneous trail of the two cases.

Abul Kashem and others Vs. Sanjida Begum and another, 14BLD(HCD)383 Ref: 37 DLR 227; 37 DIR 335; 28 DLR 359; 18 DLR (SC) 474-Cited

Examination of complainant 

The purpose of examination of the complainant under the section 200 Cr.P.C is to see whether there is sufficient ground for proceeding and not to see whether there is sufficient ground for conviction. Adequacy or sufficiency of evidence can be determined at the trial-Cr.P.C. S. 200. S. A. Sultan Vs. The State and another, 14BLD(AD) 36

Section 200—Use of the word “report” in this section in contradiction to the word “complaint” used in section 200 of the Code appears to be significant. The word “report” presupposes enquiry or investigation and without making enquiry or investigation a report cannot be prepared and submitted. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Section 200-Both the Magistrate and the Sessions Judge committed error of law resulting in miscarriage of justice by rejecting the Naraji petition and discharging the accused opposite parties on the basis of the police report. The Magistrate ought to have held an inquiry on the Naraji petition before rejecting the case. Jalaluddin Bhuiyan vs Abdur Rouf 51 DLR 408.

Sections 200 and 190—An enquiry or investigation can be directed by the Magistrate under section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. It is wrong to say that simply because the case was started on a petition of complaint, the Special Tribunal constituted under the Special Powers Act would have no jurisdiction to try the case, if it is otherwise triable under the Act. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 566.

Sections 200 & 202—Judicial inquiry held after police report and upon a naraji petition is permissible under provision of section 202 of the Code and it does not amount to reopening of a case. After receiving the petition of complaint the learned Magistrate proceeded under section 202 of the Code of Criminal Procedure and himself held the judicial inquiry and in that inquiry as the complainant was examined, the action of the learned Magistrate has not vitiated the proceedings in any way for not examining the complainant immediately after filing of Naraji petition. In view of our discussion above, we therefore find no merit in this Rule. Dilu alias Delwar Hossain vs State, represented by the Deputy Cornmissioner 48 DLR 529.

Sections 200 and 202—Either there must be some information before police officer about commission of a cognizable offence or there must be a formal complaint before a Magistrate for starting orholding investigation in a case of cognizable offence. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.

Sections 200 & 202—In order to bring home the charge under section 420, it is necessary for the prosecution to prove beyond reasonable doubt that the representation made by the accused was known to him to be false and that acting on that false representation, the complainant purchased the land in question. Abul Kashem vs State 59 DLR 1.

Sections 200 & 202—[n the judicial enquiry the complainant was examined and thereafter, having found a prima facie case against the petitioner, the Magistrate took cognisance. In such a position the Magistrate committed no illegality in taking cognisance against the peti-tioner without examining the complainant under section 200 of the Code. Nirode Baran Barua vs Mrinal Kanti Das 59 DLR 456.

Sections 200, 202 & 561A—When a naraji petition was filed the same petition should have been treated as petition of complaint and the learned Magistrate was required to act in accordance with provisions laid down in section 200 or 202 of the CrPC. Abul Hossain vs State 52 DLR 222.

Sections 200, 202, 204 and 205C—Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.

Sections 200 & 204 1(A) & 1(B)— From the language of sub-section (IA) and (TB) of section 204 of the Code it is clear that taking of cognizance under section 200 of the Code will not be illegal if list of witnesses and copy of the complaint are not filed before issuance of the process of warrant of arrest or summons. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Sections 200 & 561A—The purpose of examination of the complainant under section 200 CrPC is to see whether is sufficient ground for proceeding and not whether there here is sufficient ground for conviction. Whether the evidence is adequate for supporting conviction can only be determined at the trial and not at the stage of enquiry. Allegations made in the petition of complaint having made out a prima facie case of cheating against the accused-appellant, it is not a fit case to quash the proceeding at the present stage. SA Sultan vs State 44 DLR (AD) 139.

Section 200 (aa) 

Proviso Clause (aa) of the proviso to section 200, CrPC exempts the complainant court or its authorized staff from such examination on oath. [73 DLR 304]

S. 200-The Purpose of judicial inquiry is to ascertain the truth or falsehood of the allegation but purpose of such inquiry is not to ascertain if the allegation, if prima facie made out, would end in conviction. Mostafa Kamal Vs. The State & Anr, 33 BLD (2013)-HCD-81. 

Section 200-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 200(1)(a)-In case of an oral complaint, the Court is bound to examine the complainant on oath and to record his statement and to take his signature thereon. The purpose of such examination is to enable the court to have a recorded picture of the allegations so as to decide whether to proceed with the case or not. Abdul Jabbar Sorker vs State, 64 DLR 103

Section 200(1)(a)-In case of a written complaint, the Court, as per clause (a) of the proviso to section 200(1) is not bound to examine the complainant on oath or his witnesses, before transferring the case under section 192 (to another court). The reason is simple, namely unlike an oral complaint, the court has before it a written document to consider and to decide whether or not to proceed with the Case. Abdul Jabbar Sarker vs State, 64 DLR 103