Code of Criminal Procedure
Section 205C(a)-It is a mandatory provision that the accused must be 'sent' for trial by the Magistrate. The taking cognizance of the offence by a Session Judge is not so material. The material fact is that the Magistrate empowered to take cognizance must 'send' the case to the Court of Session under section 205C(a) of the Code after taking cognizance and performing formalities, and then only the question of taking cognizance of offence by the Court of Session comes into play. The question of taking cognizance does not arise in this case for the second time. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Section 205C-Police have already submitted charge-sheet against the accused and therefore, no further investigation is necessary into the allegations made in the FIR. We direct the Commission to transmit the record if the record has not been transmitted in the meantime along with the police report to the court of Chief Metropolitan Magistrate for passing necessary orders in accordance with law. The learned Magistrate shall examine the record of the case and if he finds that a prima facie offence is disclosed, he shall proceed with the case in accordance with section 205C of the Code. Yunus (Md) vs State, 68 DLR (AD) 109
Section 205D-Section 205D of the Code clearly direct the learned Magistrate to stay the proceeding if at the time of filing a CR case the investigation of a GR case is in progress over the same matter. Monir Hossain vs State, 65 DLR 413
Section 205D(1)(2)(3)-When there is a complaint case and a police case over the selfsame occurrence against some persons as accused, the proceeding of the complaint case would be stayed giving way to the police to conclude the investigation of the case and if the police report does not relate to all accused persons in the complaint, the Magistrate shall hold an inquiry into the complaint and upon such inquiry, he shall proceed with the trial of both the cases analogously as if the complaint was made with police or send the case to the Court of Sessions if the offences are triable by the Courts. In such a case, both the cases are deemed to be instituted on a police report. But according to sub-section (3) if the police report does not relate to any accused in a complaint case, the Magistrate shall proceed with the inquiry and trial which was stayed by him in accordance with the provisions of the Code. Enayet Chowdhury (Md) vs State, 70 DLR (AD) 22
Sections 205D(1)(2) and 439-Memo of appeal may be treated as a revision and the Sessions Judge or any other Court shall dispose of the revision in accordance with law. Enayet Chowdhury (Md) vs State, 70 DLR (AD) 22
Sections 221 and 222-Object of framing of charge-The object of framing a charge to enable an accused person to known the substantive charge which he will have to meet at the trial. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Section 222-Merely because charge has been framed against the accused, the case is not proved against him and it is the prosecution which has to prove its case beyond reasonable doubt, and the accused shall have all the right to take his defence by cross-examining the prosecution witnesses and also by examining his own witnesses, if he so desires. Ahmed Lal Mia vs State, 66 DLR (AD) 204
Sections 222, 234 and 537-Violation of the provisions of sub-section (2) of section 222 of the Code in respect of framing of charge against an accused is not curable by section 537 of the Code and, as such, the trials of those cases stood vitiated. But admittedly the provisions of sub- section (IB) of section 6 of the Act were not brought to the notice of the Courts nor those were agitated by any party before the Courts. So necessarily there was no finding in place with regard to the primacy of the provisions of sub-section (1B) of section 6 of the Criminal Law Amendment Act Act over those of section 222 and section 234 of the general law in those decisions. ATM Nazimullah Chowdhury vs State, 65 DLR 500
Section 222(2)- 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
Sections 222(2) and 234(1)-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
Section 222 and 234- So necessarily there was no finding in place with regard to the primacy of the provisions of sub-section (1B) of section 6 of the Criminal Law Amendment Act Act over those of section 222 and section 234 of the general law in those decisions. ATM Nazimullah Chowdhury vs State, 65 DLR 500
Sections 222(2) and 234(1)- 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
Section 227-Charge may be altered at any time even before pronouncement of the judgment. For proper adjudication the trial court should, in consideration of the entries contained in the cheque namely the designation of the petitioner as the Managing Director of the Company, alter the charge. Shariful Haque (Md) vs State represented by the Deputy Commissioner, 70 DLR 209
Sections 227(1)(2)-If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronounce- ment of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. State vs Md Ibrahim Ali, 66 DLR (AD) 33
Section 227-Charge may be altered at any time even before pronouncement of the judgment. For proper adjudication the trial court should, in consideration of the entries contained in the cheque namely the designation of the petitioner as the Managing Director of the Company, alter the charge. Shariful Haque (Md) vs State represented by the Deputy Commissioner, 70 DLR 209 Sections 227(1)(2)-If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronounce- ment of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. State vs Md Ibrahim Ali. 66 DLR (AD) 33
Section 227-The appellate Court has wide power to alter and amend the charges which may have been erroneously framed earlier. State vs Nurul Amin Baitha (Criminal) 75 DLR (AD) 187
Section 231-The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case. Gias Uddin-al-Mamun (Md) vs State, 70 DLR (AD) 123
Sections 231 and 540-As per provision of section 231 of the Code if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. Gias Uddin al-Mamun (Mil) vs State, 70 DLR (AD) 123
Section 232—The accused has been prejudiced by absenée of charge or framing of the charge at a belated stage. Section 232 CrPC contemplates a new trial or remanding of the case to the trial Court in such a situation. It is too late now to direct a retrial after a long lapse of time. Abdur Razzaque @ Geda vs State 48 DLR 457.
Section 232 The accused has been preju- diced by absence of charge or framing of the charge at a belated stage. Section 232 CrPC contemplates a new trial or remanding of the case to the trial Court in such a situation. It is too late now to direct a retrial after a long lapse of time. Abdur Razzaque @ Geda vs State 48 DLR 457.
Section 234- 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 (IB) 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
Sections 234 and 239, 535 and 423(b) (2)- An accused person can be convicted of a particular offence only if he was charged with the same. The ordinary rule that the accused cannot be convicted of any offence with which he is not charged is circumscribed by exceptions. The power of the appellate court under section 423(b)(2) is, however, subject to the condition that the appellate court cannot enhance the sentence imposed by the trial court. (SK SINHA, JAGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Sections 235 and 239-Whether a series of acts are so connected together as to form the part of the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formula of universal appli- cation cannot be framed regarding the question whether two or more acts constitute the same transaction. The circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. A transaction may be continuous one extending over a long period and two places. The expression "part of the same transaction" must be understood as including both immediate cause and effect of an act or even also its collocation or relevant circumstances. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Revival of Criminal Case
Revival of a case against a
discharged accused
With the discharge of an
accused the proceeding against him comes to an end and the Magistrate has no
power to revive the said proceeding against him in the absence of at fresh
complaint or a fresh police report in respect of the same offence. A second
prosecu- tion is competent under special circumstances. Cr.PC. S.241A Maulana
M.A. Mannan and others Vs. The State, 15BLD (HCD) 151
Section 241A-The plea are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. Maulana Abdul Malek Miah vs State, 467
Section 241A-Question of 'mens rea of an accused cannot be gone into a criminal revision. It is essentially a matter of evidence and trial. Mohua Ali vs State, 70 DLR 816
Sections 241A and 242-Whether the accused petitioner have done their duties with due care and caution the same will be considered at the time of trial after taking evidence in the case but not at the stage of charge hearing. Delwara Begum vs Dr. Md Surman Ali, 70 DLR 766
Sections 241A, 242 and 342-The accused was present at the time of framing of charge and recording statement of the witnesses. Even she submitted her written statement at the time of examining her under section 342 of the Code. Begum Khaleda Zia vs Anti-Corruption Commis- sion. 70 DLR 755
Sections 241A/265C-Defence ver sion should not be taken into consi-deration by the trial Court at the stage of framing charge. Aleya vs State, 70 DLR 303
Section 247-There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the Code. Unless and until the order of acquittal under section 247 of the Code is revised or set-aside by the higher Court, the same Magistrate cannot set over the matter and set-aside his own order and re-start disposed of criminal proceeding. Azizur Rahman Khan vs State. 65 DLR 298
Sections 247/561A-An order of acquittal passed under section 247 of the Code being appealable which lies to the High Court only, the Sessions Judge/ Additional Metropolitan Sessions Judge, had no jurisdiction to entertain the revision which is not maintainable; that as the revisional proceeding being not maintain- able before the Sessions Judge, the proceeding was before a court which is quorum non-judice and hence the impugned order setting aside the acquittal is void abinitio. Md Ismail vs State, 64 DLR 473
ection 265 I (3) Restricted the number of defence witnesses- 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. In the facts and circumstances of the instant case 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- Anti Corruption Commission, [4 LM (AD) 389]
Section 265C-At the time of charge hearing, the Court of Joint Metropolitan Session in true sense had no legal scope to consider or decide those facts and it was therefore well justified to refuse the prayer filed under section 265C of the Code. Majharul Hoque Monsur va Mir Kashim Chowdhury, 69 DLR 241
Section 265C-It will be just and proper to say few words regarding the impugned order. The Trial Court in his impugned order used the short abbreviation like SPP. We fail to understand what he tried to mean to introduce the said letter in the order. There is no scope to use this type of abbreviation in the Court proceeding. Over and again there were 6 accused in the case but the Tribunal discharged only one accused from the case although he did not mention his name. The sprit of the order says that he discharged all the accused from the case. This type of order clearly indicates the non application of the judicial mind of the presiding Judge which we can not expect from a senior Judicial officer holding the post of District Judge. Mosammat Beauty vs Miraj Hossain, 70 DLR 854
Editors’ Note:
In the instant Criminal Revision question came up for consideration as to whether the Sessions Court had power or authority to acquit an accused under section 265H of the Code of Criminal Procedure without examining any witnesses or without exhausting the legal procedures for compelling the attendance of the witnesses. The High Court Division examining relevant laws, particularly, Rule 638 of the Criminal Rules and Orders (Practice and Procedure of Subordinate Court), 2009 and case laws held that in exercising the power under section 265H of the Code, the Sessions Court must take necessary measures to secure the attendance of the witness and comply all the relevant procedures according to law before acquitting any accused. Consequently, the rule was made absolute.
Section 265H of the Code of Criminal Procedure, 1898:
From a plain reading of the provisions of section 265H it transpires vividly that after framing charge against the accused, the Sessions Judge is bound to examine witnesses and upon hearing the prosecution as well as defence if he considers that there is no evidence to proceed against the accused then the Court should pass an order of acquittal to acquit the accused. Recording the evidence before passing such an order is mandatory under section 265H of the Code. (Para 12)
Section 265H of the Code of Criminal Procedure, 1898:
Necessary measures should be taken to secure the attendance of the witness:
Our considered view is that in exercising his power under section 265H of the Code, the Sessions Judges, at first, shall take meaningful steps for securing the attendance of the witnesses; and secondly: if any witness is available record the same; and thirdly: in case of non-availability of any other witnesses, take hearings from both the parties and thereafter shall pass an order of acquittal of the accused. (Para-20)
Section 265H of the Code of Criminal Procedure, 1898:
The Court must exhaust all the procedure for taking down evidence before passing the order of acquittal:
Under the provisions of section 265H of the Code the duty of a Sessions Judge is to look into the prosecution evidence and materials brought out in the examination of the accused and thereafter should hear the learned Advocates of both sides and considering the evidences and materials on record if he finds that all the procedures under the law have been exhausted and if he is of the opinion that he has taken all possible steps for taking down the evidences of the prosecution but the prosecution has miserably failed to comply with the order of the Court, in that case, the duty casts on the Court to pass an order of acquittal of the accused. But in the present case, it appears manifestly that the learned Joint Sessions Judge without complying with the relevant laws and procedures has illegally dismissed the petition filed by the prosecution with the observations that the prosecution is not willing to adduce evidences. [18 SCOB [2023] HCD 294]
Tender of pardon to an accused The sole purpose of granting pardon to an accused is to procure evidence against other accused persons when the prosecution is faced with the difficulty of gathering evidence to bring home the charge against them. An accused is granted pardon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concemed, whether as principal or abet- tor, in the commission of the offence-Cr.P.C S. 337 Md. Zakir Hossain @ Jakir Hossain and others Vs. The State, 14BLD(HCD)509
Publication of Notification
In the absence of any notification in respect of the absconding accused in any
newspaper, the Special Judge acted illegally in proceeding with the trial in
violation of the express provision of law-Cr.P.C S. 339B(1) Md. Jamsed Ahmed
Vs. The State, 14BLD(HCD)301
Section 339C-The whole purpose of unamended section 339C of the Code was to whip up the prosecution and to make the trial Court more active so as not to delay the trial of a case unnecessarily. The stopping of a case and the release of an accused would rouse the prosecution from its slumber and would necessarily subject it to accountability. The purpose was not to give the accused a right not to be tried any more on the same charge or a clean bill of acquittal, even if he was accused of a heinous crime. Stoppage of the trial did not mean an end of the woes of the accused. A revival would revive his woes. State vs Shajahan Bepari, 67 DLR 140
Section 339C and 339D-The new Act was not given a retrospective effect, but inspite of repeal of section 339D of the Code (provision of revival of a stopped proceeding), provision was made in section 6 of the new Act for application of section 339D of the Code, as if it was not repealed, when, before the coming into force of the new Act, (i.e. on the 1st November, 1992), a proceeding was already stopped under the unamended provision of sub-section (4) of section 339C of the Code. If a proceeding is now stopped after the coming into force of the new Act either by the High Court Division or by this Court, the prosecution will not have any corresponding right of revival of the proceeding under the repealed provision of section 339D of the Code. State vs Shajahan Bepari, 67 DLR 140
Section 339C(4)- In view of repeal of sub-section (4) of section 339C of the Code followed by re-enactment of the said sub- section the new procedural law will be applicable in the pending cases, although instituted when the old provision was in force and the pending cases are to be governed by the new procedure under the amended law. Sub-section (4) of section 339C of the Code as amended by Act XLII of 1992 will be applicable to the pending case. Proceedings was not stopped and the accused was not released and in view of the Act XLII of 1992 the accused will not accrue any vested right to be released as the same is procedural law having retros pective effect. Hanif vs State, 70 DLR 92
Section 339D—Revival of a case under section 339D. Under the scheme of the Code itself, the Public Prosecutor is competent to file application for revival of a ease on behalf of the Government without any authority or instruction whatsoever. Dr SM Abu Taher vs State 42 DLR 138.
Public Prosecutor
The Public Prosecutor is to
know the law and has a responsibility to work with utmost devotion keeping in
mind that he is representing not a party but the people in the administration
of criminal justice. If he fails in his duty, a sessions exception is taken by
the Court.
The State Vs. Nurul Huq,
13BLD (HCD) Ref: 172 1.C.374; 39 Cr.LJ. 123; A.I.R. 99 1977 (SC)1116; 126
I.C.689; 62 LC. 545; P.L.D. 1964 (SC)813; 31DLR. 312; 16 D.L.R. 598;
A.I.R.1973(SC)2474-Cited
Section 340(3)-Even if an witness is arrayed in the category of an accused, his evidence may be taken into consideration under section 340(3) of the Code in support of his defence, any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. Durnity Daman Commission vs Md Gias Uddin-al- Mamun, 68 DLR (AD) 217
Section 340(3)-After a witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. Durnity Daman Commission vs Md Gias Uddin-al-Mamun, 68 DLR (AD) 217
Sections 340(3) and 342-There must be a trial in the criminal court, that the persons applying to be examined under the provision would necessarily be an accused, that after conclusion of recording evidence of the prosecution followed by the explanation/ submission of the accused, as required under section 342 of the Code is over, that the evidence of such accused will be on oath as witness, and that such evidence must be in disproving of the charge made against him or any person charged together with him at the trial. Abdul Momin vs State, 70 DLR 590
Fugitive
Fugitive from Law and
Fugitive from Justice
It is well-settled that a
fugitive from justice is not entitled to the protection of law but when he is
charged with an offence punish- able with death, he has a right to be defended
by a lawyer appointed by the State-Cr.P.C. S. 340
Nurun Nahar Zaman Vs. The
State and another, 15BLD (HCD) 537
Fugitive from Law
Surrender and custody of
the accused When the accused after his conviction surrenders in the Court and
the Court after refusing his prayer for bail orders for sending him to jail and
he is held up in custody, in the process of being sent to the jail and under
such circumstances he executed a vokalatnama duly attested by the Court police
on the strength of which an appeal is filed before the Sessions Judge, who
grants him bail after condoning the delay, it cannot be held that he was a
fugitive from justice. Minhaz A. Chowdhury Vs. Manzurul Huq and another,
16BLD(HCD)154
Section 340(3)-Expunged Evidence- It is provided in section 340(3) of the Code of Criminal Procedure that any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. A witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. Durnity Daman Commission=VS=Md Gias Uddin-al-Mamun & another, [1 LM (AD) 473]
In this connection, we may profitably refer the case of Md. Islam Uddin @ Din Islam Vs. The State reported in 27 BLD (AD) 37 wherein our Appellate Division has observed as under:
“7.It is now the settled principle of Law that judicial confession if it is found tobe true and voluntary can form the sole basis of conviction as against the maker of the same. The High Court Division as noticed earlier found the judicial confession of the condemned prisoner true and voluntary and considering the same, the extra judicial confession and circumstances of the case found the condemned prisoner guilty and accordingly imposed the sentence of death upon him. ”
In the case of Dogdu V. State of Maharastra reported in AIR 1977 SC 1759 it was observed that when in case involving capital punishment, prosecution demands conviction primarily on the basis of confession, the court must apply the double tests:
(1) Whether the confession is perfectly voluntary, and (II) if so, whether it is perfectly true.
The Code of Criminal Procedure, 1898, Section 164: It is by now well settled that an accused can be found guilty and convicted solely banking on his confession if, on scrutiny, it is found to be true, voluntary and inculpatory in nature. ...(Para 42)
Effect of belated retraction: During making confession, as it appears, the accused did not make any complaint about police torture or inducement. Even, after coming out of the clutches of the police the accused did not also raise any complaint touching the veracity of his confession immediately thereafter. Rather, after almost 5(five) years of making confession the accused filed a retraction application directly to the court which was also signed by an Advocate. Therefore, it can easily be said that such retraction application is nothing but the brainchild of the concerned Advocate. Moreover, no tangible material is found on record in support of the above application which was a belated one as well. In such a posture of things; the confession of accused Hamidul can be regarded as voluntary as well. (Para 48)
Appropriateness of quantum of sentence awarded to the convict: Now, we can turn our eyes to the quantum of sentence awarded to accused Md. Hamidul to see whether the same is appropriate in the facts and circumstances of the instant case. Admittedly, there is no eye witness of the occurrence leading to the incident of murder of victim Milon Babu and the fate of the case mainly hinges upon the lone confession of the accused together with some incriminating circumstances. Moreover, as per record, there is no previous criminal history of the accused who has been suffering the pangs and torments of the death sentence for the last about more than 5(five) years for no fault of his own. Therefore, considering the aggravating as well as mitigating circumstances of the case, we are of the dispassionate view that justice would be best served if the death sentence of the accused is commuted to one of life imprisonment along with fine. (Para 51)
The Code of Criminal Procedure 1898, Section 342: We would like to put on record one legal infirmity that has been committed by the learned Judge of the court below. On perusal of the impugned judgment and order, it reveals that the learned Judge on his own accord asked as many as 13(thirteen) questions to the accused while he was being examined under section 342 of the Code. Not only that the judge concerned has also used the same against the accused in finding his culpability in the killing of the victim boy. The above approach adopted by the trial Judge is absolutely weird, uncalled for and illegal as well. ...(Para 52)
Section 342 of the Code of Criminal Procedure, 1898: It is apparent that the learned Additional Sessions Judge has committed gross illegality in using the statement of accused Md. Hamidul under section 342 of the Code which is all together foreign in criminal jurisprudence inasmuch as a statement given by an accused cannot be used as evidence to find his culpability. ...(Para 53) The State Vs. Md. Hamidul 18 SCOB [2023] HCD 224
Section 342- Examination of accused
Purpose of the examination of an accused under section 342 Cr. P.C is to give him an opportunity to explain his position in relation to the evidence brought against him on record. This is mandatory provision of law. Improper examination causes prejuduce to the accused. Touhid and others Vs. The State 12 MLR (2007) (HC) 158.
Section 342
After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction, if such omission has prejudiced the accused in their defence. [73 DLR 18]
Minority View
Per Mr. Justice Syed Mahmud Hossain, CJ: Burden of proof in wife killing case: What is more surprising to note here is that the appellant has not provided any reasonable explanation as to the cause of the death of his wife although in wife killing case, the condemned-appellant is under the obligation to do so. He has given all contradictory suggestions to the witnesses imputing allegations that the victim was a lady of lose character having illicit connection with others. In a misogynistic society, character assassination of women is a regular feature. In the case in hand even after death victim’s soul will not rest in peace because her two sons will know that their mother was a lady of questionable character. The condemned-appellant has failed to discharge his obligation by not explaining the cause of death of his wife in his house. ...(Paras 22 and 23)
Sections 24 and 27 of the Evidence Act, 1872: It is of course true that the extra judicial confession made by the appellant before the witnesses in presence of the police is not admissible. But the fact remains that the chen/dao was recovered by the police from ceiling of the shop of the appellant at his instance in presence of the witnesses. Such recovery is admissible under section 27 of the Evidence Act. ...(Para 25)
Section 342 of Code of Criminal Procedure, 1898: When a literate accused person re-calling witnesses cross-examine them, he is not at all prejudiced by minor defects in recording his statement under section 342 of the Code of Criminal Procedure: Having gone through statement recorded under section 342 of the Code of Criminal Procedure, I find that the statement was not recorded specifying the evidence adduced by individual witnesses but it cannot be said that the appellant was prejudiced in any way by such minor omission because he is a literate person and at his instance P.Ws.5, 6 and 7 were recalled. After recalling the aforesaid witnesses they were again cross[1]examined none other than by the appellant himself. Therefore, I am of the view that the condemned-appellant being a literate person and the witnesses having been examined in his presence, he was not at all prejudiced by such a minor defect in recording his statement under section 342 of the Code of Criminal Procedure. ...(Para 32)
Majority Decision
Per Mr. Justice Muhammad Imman Ali, J Honorable Author Judge of the Majority Decision: Section 342 of Code of Criminal Procedure, 1898: We also find some merit in the submission of the learned Advocate appearing on behalf of the appellant that the examination of the appellant done by the trial court under section 342 of the Code of Criminal Procedure was not conducted properly as the incriminating evidence in the depositions of the prosecution witnesses were not placed before the appellant in accordance with law. Hence, we are of the opinion that the examination of the appellant under section 342 of the Code was not lawfully done by the trial Court. So, the trial conducted by the court below is liable to be vitiated. ...(Para 53)
Section 24 of the Evidence Act, 1872: The learned trial Judge appears to have taken into consideration the alleged admission by the appellant in presence of P.Ws 2,3,4 and 5 but failed to appreciate that if there was such an admission, it was made when the appellant was accompanied by the police and hence inadmissible under section 24 of the Evidence Act. The conviction and sentence were thus not based on legal evidence. ...(Para 63)
Section 106 of the Evidence Act, 1872: With regard to the victim’s death while in the custody of her husband, the evidence on record shows that the appellant used to stay at his shop. There was no evidence that on that night he was sleeping in his own house. Hence, there is sufficient explanation from the appellant that he was not present in the house when his wife was attacked, and provision of section 106 of the Evidence Act are not applicable in the facts of the instant case. ...(Para 64) 16 SCOB [2022] AD 22
Section 342 of the Code of Criminal Procedure, 1898 Husband is duty bound to explain his wife’s death when his wife dies in his custody and he can explain it in his 342 statement: From the testimonies of the PWs. 1, 8 and 9 it was proved beyond all reasonable doubt that the instant appellant left the PW.1’s house with his wife Nasima Begum Aka Bahana along with their two sons before the alleged killing of her. This event eventually proved that Nasima alias Bahana before her death was in undeniably in the custody of her husband, the instant appellant. On 01-05-2006, it was reported that she was missing. On 06-05-2006, her corpse was recovered from the septic tank of her husband. The appellant in his confessional statement admitted aforesaid recovery. He not only knows the recovery of corpse, rather, knows about the killing, even though, he falsely searched for Nasima with other inmates of the house only to show publicly that Nasima was really missing which was not fact. The appellant’s such a pretext undoubtedly proved that he was fully aware about the murder. …the instant appellant as the husband is solely responsible and duty bound to explain as to how and when his wife, Nasima Begum alias Bahana was died. He was miserable failed to explain, even if, he was examined under section 342 of the Code of Criminal Procedure to that effect. ...(Paras 19 and 20) 16 SCOB [2022] AD 40
In 42 DLR (AD) 31 wherein our Appellate Division has observed as underneath:
A statement of the accused under section 342 CrPC is meant for giving him and also to explain the circumstances appearing against him in the evidence adduced by the prosecution. This is entirely for the benefit of the accused and the accused only. This statement cannot be used by the court against him, nor is the prosecution permitted to use it to fill up any gap left in the prosecution evidence. A statement under section 342 CrPC is not evidence within the meaning of section 3 of the Evidence Act." The State Vs. Md. Hamidul 18 SCOB [2023] HCD 224
When injured in police custody, burden is upon them: Section 342 of the Code of Criminal Procedure:
From the evidence of P.W.4, 7, 8, 9, 12, 13, 5, 6 it appears the informant Kader had been taken as unhurt into the room of the accused Helaluddin in khilgaon thana whereon the accused had been injured. Since the alleged occurrence took place in police custody, it is duty of officer in charge to explain how an unhurt man was injured in his room. The accused was examined under section 342 of the Code of Criminal Procedure giving him an opportunity to explain the evidence and circumstances appearing against him. During the examination under section 342 of the Code of Criminal Procedure the accused said that he will give a written statement. But on perusal of record no written statement has been found. Both court below did not utter that the accused gave a written statement. Since on declaration by the accused no written documents has been produced by the accused, no evidence has been adduced to defense himself which leads the statement made by prosecution witnesses that under custody of accused officer in charge of khilgaon, the informant had been inflected chapati blow by the accused was remained unchallenged. (Para 53)
Basic pillars of Criminal Case:
It is pertinent to note that in a Criminal case, time, place and manner of occurrence are the 3(three) basic pillars upon which the foundation of the case stand on and the same are required to be strictly proved beyond reasonable doubt by the prosecution in a bid to ensure punishment for an offender charged with an offence. If in a given case any one of the above 3(three) pillars is found lacking or proved to be untrue then it is adversely react upon the entire prosecution case. (Para-55)
Torture in police custody if goes unpunished, the criminals are encouraged and the society suffers:
In recent years, torture in police custody is increasing. The crime in police custody is the worst kind of Crime in a civilized society. The court must keep in mind when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin became frustrated and lost their confidence towards law. The victim/informant is a young BCS qualified man. Moreover, the two cases had been filed against him, wherefrom he had been released as no evidence had been found during the investigation. Considering those aspects I am of the view that the cruelty and violence with which the accused caused injury the victim deserves to be treated with strict and heavy hand. (Para-56) [Md. Helal Uddin Vs. The State, 18 SCOB [2023] HCD 264]
Section 344-Merely for the reason that Bangladesh is a signatory of the Convention of 1966 under which the ICSID has been operating it cannot be said that the petitioner who has been arraigned in our own Court of law for a criminal act constituting the offence of corruption' shall be prejudiced if the proceedings going on in our Court is not kept postponed and adjourned till decision of the ICSID in connection with the said arbitration proceeding. The Court below does not appear to have acted illegally in rejecting the application under section 344 of the Code of Criminal Procedure seeking post- ponement and adjournment pending arbitration proceeding in the ICSID. Besides, in no way the decision of the said International Tribunal dealing with the said arbitration dispute shall have impact upon the proceedings pending in our court to negate the allegation of 'corruption' as the same does not have any binding force upon the legal institution of Bangladesh dealing with criminal proceedings. Moudud Ahmed vs State, 69 DLR 428
Section 344-In exercise of judicial discretion as provided in section 344 of the Code of Criminal Procedure court may pass an order postponing and adjourning the proceedings if it considers it just for securing ends of justice, but of course not for an indefinite period and for no valid reason as well. Moudud Ahmed vs State, 69 DLR 428
Section 367 (5)- Capital Sentence: Bangladesh Perspective-Bangladesh, like its neighbours and majority of the commonwealth members, retain capital punishment, though it is limited to capital offences only. Bangladesh general law, as it stands today, is slightly at variance with that in India in that a sentencing Court in Bangladesh must assign reasons whether it awards death sentence or the alternative sentence of imprisonment for life, while in India, only death sentences must be justified by special reasons.
General substantive legislation i.e. the Penal Code fixes the penalty that can be awarded, while the general procedural legislation i.e the Code of Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be followed in sentencing a person convicted of an offence punishable under a penal provision of the Pena Code.
Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as amended) provides that where the Court condemns a convict with death sentence or in the alternative awards imprisonment for life or for a tem of years, the Court shall state reasons for the sentence awarded. No sentencing section in the Penal Code specify any particular sentence. They do, instead specify the maximum sentence. often with alternative, whether custodial or not, and thereby equip the Court with a great deal of discretion.
As death sentence in Bangladesh under the Penal Code is not mandatory and alternative sentence of life imprisonment can, at the discretion of the Court, as discussed above, under the heading "sentencing principles in Bangladesh", be awarded, only in appropriate cases of murder, where aggravating factors outweigh mitigating factors, such as provocation etc. are absent death sentences are passed at the Courts' discretion. Our Courts retribution, general apply deterrence, commensurability, proportionality rationales, motive, personal circumstances of the convict. Antecedent facts leading to the commission of the offence, play decisive role in the determination of sentence. Thus the Appellate Division in Nowsher Ali - V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar V-State (40 DLR (AD) 139) commuted death sentence in wife killing cases because the couple's union were not "blissful" and were rather "rancorous".
Death sentences are however deemed appropriate when the convict act in cold blood without provocation, which are so heinous that arouse judicial indignation.
Apart from the cases of murder, which are punishable under section 302 of the Penal Code, capital punishment can be awarded for gang rape, trafficking of children, women, for seriously injuring a child or a women by acid throwing under a special legislation called Women and Children Cruelty Act, 2013. While exercising their discretion, take account of all those factors as they take in sentencing a murderer under the Penal Code provisions. (Paras: 1082- 1087); ..... Allama Delwar Hossain Sayedee -VS- Government of Bangladesh, (2 LM (AD) 76]
Section 367-Under the present provision, if the accused is convicted for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the court shall in its judgment state the reasons for the sentence awarded. The language of the provision clearly suggests that the sentence of death is the normal penalty and a lesser sentence can be passed when there is any extenuating circumstance. Section 302 of the Penal Code provide two sentences, 'death' or 'imprisonment for life. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214
Sections 367 and 410-A judicial officer, and that too of the rank of an Additional Sessions Judge, is required to evaluate the evidence on record and come to a proper finding in accordance with law and thereafter impose a sentence which is commensurate with the gravity of the offence with which the accused stands charged. Mustaq Ahmed vs State, 64 DLR 301
Section 367-Under the present provision, if the accused is convicted for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the court shall in its judgment state the reasons for the sentence awarded. The language of the provision clearly suggests that the sentence of death is the normal penalty and a lesser sentence can be passed when there is any extenuating circumstance. Section 302 of the Penal Code provide two sentences, 'death' or 'imprisonment for life. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214
Sections 367 and 410-A judicial officer, and that too of the rank of an Additional Sessions Judge, is required to evaluate the evidence on record and come to a proper finding in accordance with law and thereafter impose a sentence which is commensurate with the gravity of the offence with which the accused stands charged. Mustaq Ahmed vs State, 64 DLR 301
Section 368-Section 368 of the Code provides the mode of sentence of death and imprisonment for life has to be imple- mented. In respect of death sentence, the court shall direct that the convict 'be hanged by the neck till he is dead. A life sentence prisoner may be sent to any jail according to the convenience of the jail authority. Ataur Mridha Ataur va State, 69 DLR (AD) 214
Section 368-Both the Government and the Inspector General have power to remove a prisoner from one prison to another. It is not necessary that a person sentenced to imprisonment for life must always be sent to Andamans. He may be kept to local jails under section 368 read with the Jail Code. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214
Section 368-Section 368 of the Code provides the mode of sentence of death and imprisonment for life has to be imple- mented. In respect of death sentence, the court shall direct that the convict 'be hanged by the neck till he is dead. A life sentence prisoner may be sent to any jail according to the convenience of the jail authority. Ataur Mridha Ataur va State, 69 DLR (AD) 214
Section 368-Both the Government and the Inspector General have power to remove a prisoner from one prison to another. It is not necessary that a person sentenced to imprisonment for life must always be sent to Andamans. He may be kept to local jails under section 368 read with the Jail Code. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214
Sections 374 and 376-The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". There is no justification to commute the death penalty to imprisonment for life. Khorshed (Md) vs State (Criminal), 73 DLR (AD) 83
Section 374—Commutation of sentence— extenuating circumstances for commutation — condemned-prisoners are under peril of death sentence for almost 3 years suffering agony and torments and thereby partially purged their guilt. Their life may be spared. Sentence of death commuted to one of imprisonment for life. Abul Kashem vs State 42 DLR 378.
Section 374-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. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8
Section 374 We fully agree with the observations except the observations that "Life imprisonment is the Rule and death sentence is an exception." Because in our jurisdiction our apex Court in many cases has decided in a reverse way. Gias vs State (Criminal) 75 DLR (AD) 195
Section 374-In the given circumstances only the death penalty would be the proper punishment for the appellant Gias which will serve the ends of justice. Gias vs State (Criminal) 75 DLR (AD) 195
Sections 374 and 376-The appellants are in death cell for about 17 years and during that period the appellants have suffered mental agony, and that the father of Rabiul having nabbed him handed over to the villagers on coming to know about his involvement with the commission of the offence, justice would be best served if the sentence of death is commuted to one imprisonment for life.Milon @ Md Milon vs State (Criminal) 75 DLR (AD) 164
Sections 374 and 376-The convict Rana is in the condemned cell for more than 14 (fourteen) years suffering the pangs of death. Justice would be sufficiently met if the sentence of death of Rana be commuted to one of imprisonment for life. Gias vs State (Criminal) 75 DLR (AD) 195
Sections 374 and 376
The condemned-prisoner is a young girl of 19 years of age. Her mental condition was not developed to that level of understanding to know the consequence of the act. She is a helpless young girl, has been in jail since her arrest on 20-6-2011. Clemency of penal justice always helps a young perpetrator for his/her rectification. Taking her tender age into consideration, it is appropriate and justice will sufficiently be met if her sentence is reduced to imprisonment for life. [73 DLR 471]
Section 374, 376 & 537- Even if it is assumed that the Session Judge has not taken cognizance of the offence after the case was 'sent' by the Magistrate, the trial of the accused shall not be vitiated in view of section 537 of the Code which provides that 'no finding, sentence, or order passed by the court of competent jurisdiction shall be reversed or altered under Chapter XXVII on appeal or revision of account.... Chapter XXVII contains sections 374-380. Section 374 provides the sentence of death to be submitted by a court of Sessions to the High Court Division for confirmation. Section 376 empowers the High Court Division to confirm a death sentence or annul a death sentence. So, whenever a death sentence is passed by a court of session, it is sent to the High Court Division for confirmation. The High Court Division has power to confirm the sentence or annul the sentence and by reason of any defect or error in the procedure, death sentence cannot be vitiated. So, the conviction of the accused cannot be set aside by reason of the alleged defect. .....Mufti Abdul Hannan Munshi =VS= The State, (3 LM (AD) 566]
Section 374 & 376- The nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. We do not find any Substance in the petition. Thus, the review petition is dismissed....... Shahidul Islam @ Shahid =VS State, [4 LM (AD) 428]
Section 374-As there is no conclusive evidence as regards the principal assailant, ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life. Tapan vs State, 66 DLR (AD) 174
Section 374- Condemned Prisoner- Condemned prisoners are supposed to walk to the gallows but unfortunately they are not getting opportunity to defend them selves properly. Walking to the gallows without an opportunity of being defeded by a competent lawyer is the worst form of violation of human rights. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386
Section 374-Ends of justice demand that the accused Saiful be awarded the extreme penalty of death. Akbar Ali Lalu alias Roni vs State, 66 DLR 134
Section 374-In sentencing process, two important factors come out which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and court responded to the society's cry for Justice. State vs Bidhan Chandra Roy, 66 DLR 500
Section 374- Since the accused brought to the notice of the Sessions Judge about the insanity of the accused right from his beginning, the Sessions Judge should have obtained opinion from professional person before giving the decision that the accused was not insane. In any view of the matter, the Sessions Judge should not have proceeded with the case and recorded the evidence of the prosecution witnesses before giving decision on the point of insanity of the accused. State vs Md Sajjad Ali, 67 DLR 161
Section 374-Delay in the disposal of the case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was pre- meditated senseless, dastardly and beyond all human reasonings. Shahidul Islam @ Shahid vs State, 70 DLR (AD) 68
Sections 374 and 376-Condemned- prisoner spent about 4 years in the condemned cell, and 13 years have elapsed since the judgment of the High Court Division, which commuted her sentence of death to imprisonment for life. State vs Romana Begum alias Noma, 66 DLR (AD) 183
Sections 374 & 376-High Court Division is competent to convert the case into suitable section of the Penal Code and dispose of the appeal on its merit. State vs Md Golam Sarwar @ Ripon, 67 DLR 407
Sections 374 and 376-It is admitted that accused husband had a son aged about 14 months at the time of occurrence and previous record indicates that the con- demned-prisoners in not the hardened criminal. Considering the attending cir- cumstances, we think for ends of justice if the sentence of the condemned accused is altered to one of imprisonment for life. State vs Imran Ali, 69 DLR 135
Sections 374 and 410-True, no appeal was preferred against the order of acquittal of the accused persons on the charge of criminal conspiracy but, this itself is not a legal ground to shirk its responsibility even if there are sufficient evidence in support of the charge. (SK SINHA, J. AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Sections 374 and 376-From the nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitiga ting or extenuating circumstances on record for commutation of the sentence of death. Shahidul Islam @Shahid vs State, 70 DLR (AD) 68
Sections 374 and 376-Since heinous crime was committed in cruel and diabolical manner, death sentence is justified punishment. It is true death for death may be, to some extent, inhuman but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life. The nature of the crime reveals that the petitioner is a menace to the society and sentence of imprisonment would be altogether inadequate. Shahidul Islam @ Shahid vs State, 70 DLR (AD) 68
Sections 375-376
It has been well proved by sufficient tangible evidence that the condemned-prisoner Md Abu Taher @ Choru Miah and Zahirul Islam @Zahir cannot be escaped from their liability in commission of the dacoity along with the heinous gruesome killing of the deceased Tofazzal and there is no such mitigating extenuating circumstances by which their sentence can be commuted but in respect of Abdus Salam Liton who only participated in the occurrence of dacoity with other dacoits, deserve compassionate view in commuting his death sentence and reducing to imprisonment. [73 DLR 18]
Section 376- The convict has now been in the condemned cell for more than 9/2 years due to no fault of his own. The length of period by now can be taken as a circumstance, when there are other extenuating circumstances, to commute the sentence of death of imprisonment for life" Nazrul Islam (Md) va State, 66 DLR (AD) 199
Section 376- Commutation of death sentence -The accused is languishing in the death cell for the last 6(six) years. The attending circumstances impel us to consider his sentence as well andends of justice will be met if his sentence is commuted into the sentence of imprison- ment for life from the death sentence. State vs Zakaria Kabiraj, 64 DLR 523
Section 376-Delay-Mere delay is not a legal ground for commutation of the sentence. Rasedul Islam (Md) vs State, 68 DLR (AD) 114
Section 376-The petitioner has no significant history of prior criminal activity and that he was aged 14 years at the time of commission of the offence and 16 years at the time of framing of charge. The petitioner has been in the condemned cell for more than 14 years. Death sentence of the petitioner be commuted to imprison- ment for life. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh, Secretary, Ministry of Home Affairs, 68 DLR (AD) 1
Section 376-The condemned- prisoner has suffered in the condemned cell for over 10 years and 8 months and thus the length of period can be taken as one of the reasons to commute the sentence of death to one of imprisonment for life. Sikha Rakshit vs Paritosh Rakshit, 70 DLR (AD) 1
Section 376-Relying on the circum- stantial evidence corroborated by extra- judicial confession rightly fund guilty under sections 302/34 of the Penal Code and awarded them the sentence of death but we are of the opinion that the ends of justice would be met if the "sentence of death" is commuted to "imprisonment for life" to those convicts. State vs Jashim Uddin alias Iqbal, 70 DLR 211
Section 376
The accused was about 18 years of age at the time of commission of offence and taking his tender age into consideration, justice would sufficient by be met, if his sentence is reduced to imprisonment for life. [73 DLR 411]
Section 376-Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose-punitive, deterrent and protective. Giar vs State (Criminal) 75 DLR (AD) 195
Section 376-The fact of prolonged incarceration together with the discussion that we made fortified with the recently passed decision of this Division can be considered as a mitigating circumstances and for that reason we are inclined to modify the order of sentence and commute the sentence of death to that of imprisonment for life. Anowar Talukder vs State (Criminal) 75 DLR (AD) 221
