Criminal Law Amendment Act (XL of 1958)
Section 2(b)-A Member of Parliament represents the people, the owners of the country and their authority moves with him. He is neither appointed by the Government nor is he in the pay of the executive Government. He discharges his constitutional duties of law making in accordance with the laws made by them not by rules and regulations made by the executive. Zakir Hossain Sarkar vs State. 70 DLR 203
Section 2(b)-Realising the
importance of honesty and probity in public life and to weed out the corruption
rampant amongst the public servants, the legislators thought it fit and proper
to frame a comprehensive legislation in the form of Anti-Corruption Commission
Act. Before that they provided the expanded definition of "public
servant" substituting 2(b) quoted in Act. Anti-Corruption Commission vs Md
Shahidul Islam @ Mufti Shahidul Islam, 68 DLR (AD) 242
Sections 3 and 4-Notification
was published in the official gazette on 8-5- 2014 but the same was given
effect from the date of its communication. Pursuant to the said notification,
the respondent No. 4, joining as Special Judge, Court No. 3, lawfully assumed
jurisdiction vested in that Court and passed order or orders in the proceedings
pending in that Court. Begum Khaleda Zia vs Bangladesh, represented by the
Secretary, Ministry of Law, 67 DLR (AD) 133
Sections 3 and 4(2)-When a
public functionary is found to have been acting in a particular capacity in
normal course, the Court may presume that he has duly been empowered to act in
that capacity. Begum Khaleda Zia vs Bangladesh, represented by the Secretary,
Ministry of Law, 67 DLR (AD) 133
Sections 4(4) and 6(1)-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
Section 5(6) r/w Sec. 6A & 8- Further investigation of the case under section 5(6) of the Criminal Law Amendment Act, 1958- Section 8 of the Criminal Law Amendment debars de-novo trial for an offence punishable under the Criminal Law Amendment Act. Moreso. under section 6A of the Act, a special time limit has been fixed for concluding trial of a case providing that the trial shall have to be concluded within 45 days from the date of taking cognizance of the offence and if the trial cannot be concluded within the said time, the Special Judge after recording reasons in writing conclude the trial within 15 days next thereafter. In this case more than 7 (seven) years elapsed from the date of taking cognizance of the offence. Moreso, the trial of the case is almost over. The examination of the alleged offenders is also over. On 2-2-2017 the petitioner has been examined. From the record, it appears that the learned Special Judge has assigned proper reasons in rejecting the application.
The application filed by the petitioner is misconceived one. We find no error in the order of the High Court Division that calls for interference. Begum Khaleda Zia =VS= State, [6 LM (AD) 85]
Section 6(2)- The impugned order that Special Judge considering prosecution case and others materials on record allowed the prayer for tendering pardon and also allowed this respondent Nos. 3 and 4 as approvers. From the section 6 sub section 2 of the Criminal Law Amendment Act, 1958. ......Gias Uddin Al-Mamun (Md) -VS- The State, [3 LM (AD) 558]
Section 6(1B)-The provisions
of the special law will prevail over those of the general law. A person accused
of more offences than one may be tried at one trial for all such offences. The
limitation of one year as contained in the proviso to sub-section (2) of
Section 222 is not applicable for trial of a person accused of more offences
than one under the Act. ATM Nazimullah Chowdhury vs State, 65 DLR 500
Section 6(1B)-In respect of
trial of offences punishable under section 409 of the Code and section 5(2) of
the Act under the Criminal Law Amendment Act, the accused-Ambassador may be
tried for all such offences irrespective of dates of commission of the same.
ATM Nazimullah Chowdhury vs State, 65 DLR 500
Section 6(1B)-Any number of
offences punishable under the Criminal Law Amendment Act irrespective of the
period over which the offence was committed, may be tried at one trial. All the
offences committed over any length of period of time could be tried in one
trial upon framing one charge. State vs Md Ibrahim Ali, 66 DLR (AD) 33
S. 6(1B)-The provisions of the special law will prevail over those of the general law. A person accused of more offences than one may be tried at one trial for all such offences. The limitation of one year as contained in the proviso to sub section (2) of Section 222 is not applicable for trial of a person accused of more offences than one under the Act. ATM Nazimullah Chowdhury Vs. State, 65 DLR (2013)-HCD-500.
S. 6(1B)-In respect of trial of offences punishable under section 409 of the Code and section 5(2) of the Act under the Criminal Law Amendment Act, the accused-Ambassador may be tried for all such offences irrespective of dates of commission of the same. ATM Nazimullah Chowdhury Vs. State, 65 DLR (2013)-HCD-500.
Section 6(2)-Section 6(2) is
a special provision and Special Judge is authorized to accept the prayer for
tendering pardon. The trial Court is directed to allow other accused to
cross-examine the approvers as per provision law at the time of examining them
as approvers of the case. Gias Uddin Al-Mamun (Md) vs State, 69 DLR (AD) 322
Section 6(2)- Special Judge
with a view to obtaining the evidence of any person supposed to have been
directly or indirectly concerned in or privy to the offence, may for reasons to
be recorded in writing tender pardon to such person on condition of his taking
a full and true disclosure of the whole of the circum- stances within his
knowledge relative to the offence and to every other person concerned, whether
as principal or abettor, in the commission thereof and any pardon so tendered
shall, for the purposes of sections 339 and 339A of the Code of the Criminal
Procedure. Gias Uddin Al- Mamun (Md) vs State, 69 DLR (AD) 322
Section 6(1B)-While quashing
the criminal proceeding this court observed that the period of occurrence in
respect of the incident is hit by section 234 of the Code. This observation is
made through overlooking sub-section (1B) of section 6 of the Act, 1958. The
observation is expunged. Manzur Ahmed vs Government of the People's Republic of
Bangladesh, 70 DLR (AD) 155
Section 6(2) There is no
specific allegation in the application that the approvers willfully concealed
anything essential or gave false evidence, so they are liable to be tried, in
such view of the matter, the second prayer made by the petitioner is not so
relevant for him. The person who is authorised to grant certificate is the
Public Prosecutor who has been conducting the case. It is not the case here
that the approvers have failed to comply with the conditions of pardon, either
by willfully concealing anything essential or by willfully giving false
evidence, the High Court Division rightly refused to interfere with the order
of Special Judge in view of the prevailing facts and circumstances of the case.
Gias Uddin al-Mamun (Md) vs State, 70 DLR (AD) 123
Section 6(2)-Tender of
Pardon- Court with a view to obtaining the evidence of any person supposed to
have been directly or indirectly concerned in or privy to the offence, may
grant or accept pardon SO tendered on certain conditions. Ordinarily it is for
the prosecution to ask that a particular accused, put of several, may be
tendered pardon. But an accused is not precluded for applying directly to the
trial judge seeking pardon intimating the prosecution. Gias Uddin-al-Mamun (Md)
vs State, 70 DLR 405
Section 6(2)-The aim of the
Court in granting pardon to an accused is only to obtain his evidence as a
witness. The tender of a pardon does not prevent the prosecu- tion from
proceeding against an approver as an accused when he has not performed the
conditions of the pardon. Gias Uddin- al-Mamun (Md) vs State, 70 DLR 405
Section 6(2)-Tender of
Pardon- Direction does not preclude Shahjad Ali and Tahmina Ali from tendering
pardon after their transposition as accused. Gias Uddin-al-Mamun (Md) vs State,
70 DLR 405
Section 6(2)-Approver-The
accused petitioner has no right to raise objection against tender of pardon to
another accused. The accused shall have the opportunity to cross-examine the
approver whose evidence is likely to be used. When an accused applied for
pardon the matter remains between the Court and the accused applying for pardon
and the other accused have no right whatsoever to raise any objection. Gias
Uddin-al-Mamun (Md) vs State, 70 DLR 405
Section 6(2)-Tender of
Pardon-The accused petitioner has nothing to be prejudiced in accepting the
tender of pardon of two co-accused as the accused petitioner shall have the
opportunity to cross-examine them. Gias Uddin-al- Mamun (Md) vs State, 70 DLR
405
Section 6(3)- The Court is
required to issue process unless he considers, and gives his reasons in writing
that the application should be refused on the ground that it is made for the
purpose of vexation or delay or for defeating the ends of justice. The trial
Court opined that a list of 271 defence witnesses would cause vexation, delay
the trial and the ends of justice would be defeated. And for that reason he
restricted the number of defence witnesses to a maximum of 10. The High Court
Division did not find any reason to interfere with that decision. Monirul Islam
Khan vs State, 70 DLR (AD) 104
Section 6(2)- The Special Judge, recording the reasons, accepted the prayer for tendering pardon. In such view of the matter, we do not find any wrong in the judgment of the High Court Division. However, the trial Court is directed to allow other accused to cross-examine the approvers as per provision law at the time of examining them as approvers of the case. Gias Uddin Al-Mamun (Md) =VS= The State, [3 LM (AD) 558]
Section 6(5)- The learned Judges held that since sub-section (5) of section 6 of the Act, 1958 was repealed on 18.04.2004 by Act XXII of 2004, therefore, "at the time of submission of police report, on 29.10.2004 prior sanction of the Government for prosecuting the accused was not required under the law in existence." So, taking of cognizance of the offence under section 409 of the Penal Code against the petitioner by the Senior Special Judge on 12.03.2005 in the absence of any sanction was not illegal or without lawful authority. In view of our findings that continuation of the investigation of the case in question by the police after coming into force of the Ain, 2004 was illegal and without jurisdiction, the question as to whether prior sanction of the Government or the Commission was required for taking cognizance by the Senior Special Judge against the petitioner.
The learned Senior Special Judge, Sylhet acted illegally and without jurisdiction in taking cognizance of the offence under section 409 of the Penal Code against the petitioner and other two accused, on the basis of the report, filed by the police under section 173 of the Code and the High Court Division also erred in affirming the same. However, in view of the fact that the case was initiated as back as on 17.12.2003.
Accordingly, this petition is disposed of in the following terms:
(a) The order dated 12.03.2005 passed by the Senior Special Judge, Sylhet in Special Case No. 1 of 2005 taking cognizance against the petitioner and the other accused under section 409 of the Penal Code and the impugned judgment and order passe by the High Court Division in affirming t same are set aside.
(b) The report submitted by Su Inspector of police, Md. Moinul Isla of Kotwali police station 29.10.2004 in the case under sectio 173 of the Code of Criminal Procedur is declared to be no report in the eye o law and the same is quashed.
(c) The Senior Special Judge, Sylhet is directed to send the case records to the District office of the Durnity Daman Commission, Sylhet for investigating of the case afresh by it as per the provisions of the Ain, 2004 and the Bidhimala framed there under keeping in view of the observations and the findings given by this Court in the judgment....Kaisor-uz-Zaman(Md.) =VS= Deputy Commissioner, Sylhet, [10 LM (AD) 483]
Section 9-Punishment of offences- Sentence of fine is not in conformity with section 9 of the Act. When the Special Judge imposes a sentence of imprisonment, he is required to impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence. State vs Md Abul Hossain, 64 DLR (AD) 39
S. 9-This sentence of fine is not in conformity with section 9 of the Criminal Law Amendment Act, 1958. Under this provision, it is provided that when the Special Judge imposes a sentence of imprisonment, he is required to impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the office. It is on record that the accused. respondents misappropriated Tk. 2,12,863.00 and therefore, the Special Judge was required to impose sentence of fine of that amount. Accordingly, we modie. the sentence of fine awarded by the Divisional Special Judge in the operation na of the judgment to the effect that in place of Tk. 71,000/- each the words and figure "Tk. 72431.00 each" be substituted. The accused-respondents are aged persons and in consideration of the amount of misappropriation, we are inclined to reduce their period of sentence of imprisonment for the period they have already undergone. The appeals are allowed with the modification of the sentence...(15)
The State Vs. Md. Abul Hossain (Criminal), 10 ADC (2013)-Page-626.
S. 9-This Sentence of fine is not in conformity with section 9 of the Criminal Law Amendment Act, 1958. Under this provision, it is provided that when the Special Judge imposes a sentence of imprisonment, he is required to impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the office. It is on record that the accused respondents misappropriated Tk.2,12,863.00 and therefore, the Special Judge was required to impose sentence of fine of that amount. Accordingly, we modify the sentence of fine awarded by the Divisional Special Judge in the operating part of the judgment to the effect that in
Section 10-The High Court Division has not at all applied its judicial mind in acquitting the respondent. The question has already been settled by this Division and we find no cogent ground to depart from the same. The matter is sent back on remand to the High Court Division for disposal of the appeal on merit afresh. ACC vs Mofazzal Hossain Chowdhury Maya, 67 DLR (AD) 230
Section 10-The accused are aged persons and in consideration of the amount of mis-appropriation, reduce their period of sentence of imprisonment for the period they have already undergone. State vs Md Abul Hossain, 64 DLR (AD) 39
Sections 10(1)(a) and 11-Since the paper books for the appeal pending before the High Court Division are ready, the High Court Division is directed to dispose of the appeal. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Section 10(1A)-High Court Division in exercising its revisional power may also suo motu call for the record of the Courts subordinate to it and set aside any order passed by such courts in a legal proceeding which has caused miscarriage of justice. Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380
Section 10(2)-The Commission under the Ain of 2004 has been given exclusive power to conduct cases instituted under the Ain. Anti-Corruption Commis- sion vs Monjur Morshed Khan, 64 DLR (AD) 124
Section 10(3)-A transfer should not readily be granted for any imaginative ground of a litigant. Where the ground for transfer is not substantiated as such does not exist, case cannot be transferred. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3)-Petitioner has failed to make out a case that she has reasonable apprehension of not availing justice from the presiding Judge of the Court. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3)-Mere allegation like substantial prejudice, non-availability of the congenial atmosphere for a free trial cannot be the ground for transfer of a case. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3)-The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension. Mere existence of a surcharged atmosphere without there being proof of inability for holding fair and impartial trial cannot be made a ground for transfer of a case. Begum Khaleda Zia vs State, 70 DLR (AD) 175
Section 10(3)- Transfer the Case under Sec. 5(2) of the Act II 1947 read with Sec. 409/109 of the Penal Code- The petitioner is entitled to get an order of transfer if she shows circumstances from which it can be inferred that there is apprehension that she would not get justice from the Judge concerned and that the same is reasonable in the circumstances alleged but a mere allegation of apprehension is not enough; the Court will consider whether the apprehension is reasonable, genuine and justifiable.
Taking into consideration the entire facts and circumstances of the case and the materials on record, we are of the view that the petitioner has failed to make out a case that she has reasonable apprehension of not availing justice from the presiding Judge of the Special Court No. 5, Dhaka. The petition is dismissed.... Begum Khaleda Zia =VS=State, [6 LM (AD) 91]
Criminal Law Amendment Act (XL of 1958)
Sections 10 and 11
Bail to a convicted person is not a matter of right, irrespective of whether the offence he/she has been found guilty of is a bailable or non-bailable one, and that bail should be allowed only when after perusal of the convicting court's judgment, evidence and the arguments of the counsel the appellate Court considers the grant of bail justified.
Bail
If the appellate court feels that the interest of justice required the convicted person to be enlarged on bail for the pendency of his/her appeal, it can allow him/her bail. Bail may be granted in cases involving serious offences if there is no legal evidence or if the appellate court is satisfied that there is a likelihood of success in the appeal.
Constitution of Bangladesh, 1972
Article 35(3)
Inordinate delay in hearing the appeal due to Court's own inability is a relevant point for consideration of granting bail. To have speedy justice is a fundamental right.......(15)
Medical treatment
We do not find lacking sincerity of the doctors of the BSMMU to provide adequate treatment for the petitioner. It is the obligation of the BSMMU authority to provide appropriate treatment for the petitioner, if the petitioner gives necessary consent, the Board is directed to take steps for immediate advance treatment namely, biologic agent as per recommendation of the Board. [72 DLR (AD) (2020) 80]
