Section 401—Empowers the Government to remit and suspend a sentence passed by a Court but for such remission and suspension of sentence the order of conviction is not reversed. It remains in force, but the convict due to an order of rem ission and suspension passed under section 401 CrPC is not to serve out the period of sentence so suspended and is not to pay the fine so remitted. Nasiruddin Miah vs State 40 DLR 244.
Sections 401 and 423—In ease of an appeal from an order of acquittal, the Court may refuse the prayer of withdrawal of the appeal as it may find on hearing the appeal on merit that the order appealed is illegal and calls for an order of conviction. Nasiruddin Miah vs State 40 DLR 244.
Section 401-The question of remissions of the entire sentence or a part of it lies within the exclusive domain of the Government under section 401 of the Code and neither section 57 of the Penal Code nor Rules can stultify the effect of the sentence of life imprisonment given by the court. As it is not possible to fix a particular period of the prisoner's death so any remission given under the Rules could not be regarded as a substitute for a sentence of life. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214
Section 401-The executive and the judiciary exercise distinct powers and play distinctive roles. The executive exercises power by the State is in a nature of subordinate role, while a judicial decision is given by a court after analysis having regard to the proportionality of the crime committed. If it decides that the offender deserves to be punished with a sentence of death or in exceptional case his sentence of death be commuted to life imprisonment, this power cannot be exercised by the executive. This power is exercised by the court under the Constitution, Code of Criminal Procedure and the Penal Code. Judicial power exercised by the court should not be interfered with by the executive Government in exercise of its power of remission under section 401 of the Code. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214
Section 401(1)- If a fugitive from law is given pardon knowing his status then the exercise of power under Article 49 of the Constitution or section 401(1) of the Code certainly be arbitrary, malafide, unreason- able, irrational and improper and such exercise of power is against the principle of the rule of law and an abuse of the power. Sarwar Kamal vs State, 64 DLR 329
Section 401(1)(2)(3)-Sub-section (1) of section 401 of the Code has empowered the Government to suspend or remit sentence, either whole or party of the punishment to which a convict has been sentenced; on the other hand sub-section (3) of the section has empowered the Government to cancel the suspension or remission of sentence and to take the concerned person into custody, if at large, to undergo the unexpired portion of sentence; sub-section (2) of the section makes a provision that the Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state is opinion as to whether the application should be granted or refused. Sarwar Kamal vs State, 64 DLR 329
Section 403—Double Jeopardy—The accused is going to be prosecuted in respect of an offence which did not occur during the earlier transaction nor the present case arose out of the same fact and for the present offence he was not tried previously. In such a position the doctrine of autrefois acquit and autrefois convict or of the Code as to double jeopardy is not applicable in the present case. HM Ershad vs State 45 DLR 534.
Section 403—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.
Section 403(1)—The whole basis of section 403(1) of the Code as well as Article 35(2) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal—if the court is not so competent, the whole trial is null and void and it cannot be said that there was any conviction or acquittal in force such a trial does not bar a subsequent trial of the accused. Muhammadullah vs Sessions Judge 52 DLR 374.
Section 403(2)—Trial of an accused for one distinct offence will not stand in the way of his subsequent trial for the other distinct offence as specifically provided by sub-section (2) of section 403.
The former trial for unauthorised possession of the firearms will not be a bar to the subsequent trial for the offence of robbery, even if the same firearms have been used while committing the robbery. The trial of the petitioners in this case is perfectly lawful. Arfan Ali vs State 42 DLR (AD) 22.
Section 403-Previous conviction or acquittal impose bar subsequent trial for the same offence not for a different offence constituted by the same acts. Gias Uddin- al-Mamun (Md) vs State, 65 DLR 375
Section 403- Bangladesh a sovereign entity shall determine what act or omission committed within its territory constitutes an offense in exercise of power under its own law, not that of the other. Therefore, no violation of the prohibition on double jeopardy results from successive prose- cutions under the relevant penal law of Bangladesh, because by one act the accused has committed two offences one is beyond the territory of Bangladesh which was punishable under law of UK a distinct sovereign entity and now is being prosecuted for the same act constituting offence punishable under law of our own. Robin Chowdhury @ Misba Uddin vs Anti- Corruption Commission 69 DLR 253
Section 403-It cannot be said that the accused is being prosecuted twice for the same offence' merely for the reason that he has been convicted for the same act which constituted and offence punishable under the law of UK. It transpires that the accused allegedly by a single act violated laws of two sovereign states and thereby committed two distinct offences and thus the prosecution relating to an offence punishable under our own law even for the same act does not breach the doctrine of 'double jeopardy. Robin Chowdhury@ Misba Uddin vs Anti-Corruption Commission 69 DLR 253
Section 403-A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal seem is in force, not be liable to be tried again for same offence. There is no room to say that by accepting the report under section 173 of the Code a vested right has been created in favour of the accused opposite parties. Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380
S. 403-Previous conviction or acquittal impose bar subsequent trial for the same offence not a different offence constituted by the same acts. Gias Uddin-al-Mamun (Md.) Vs. State, 65 DLR (2013)-HCD-375.
S. 403-There is nothing like res-judicata in a criminal trial as long as it does not terminate in either acquittal or conviction so as to attract the provisions of section 403 of the Code. TaeHung Packaging (BD) Ltd. Vs. Bangladesh (Civil), 18 BLC (2013)-AD-144.
Sections 404, 410, 417, 418, 422 & 423— The Code drew no distinction between an appeal against an acquittal and an appeal against a conviction, as regards the powers of the High Court. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Property
The expression
"property" occurring in section 405 of the Criminal Procedure Code,
should not be given a narrow construction.
Blank
forms of tickets are also property when the same are converted into ticket.
A.H.M. Siddique Vs. The State, 13 BLD (HCD) 85
Section 408—Appeal will lie to the Court of Sessions if the Assistant Sessions Judge deemed to be an Additional Sessions Judge passes a sentence of imprisonment for a term of five years or less. Section 408 has full force and application. Nurul Huda vs Baharuddin 41 DLR 395.
Sections 408, 417A & 423—Except under the provisions of section 41 7A of the Code there is no other provision for filing appeal for enhancement of sentence. In an appeal from a conviction, sentence may be reduced by an appellate Court but sentence can be enhanced only in an appeal for enhancement of sentence and that can be done after giving the accused an opportunity of showing cause against enhancement. Moktar Ali Bepari vs State 51 DLR 439.
Section 409—An Assistant Sessions iu1e 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, eg for hearing appeals, revisions, references 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. Abdul Kashem vs State 43 DLR (AD) 77.
Sections 409, 410, 435, 436, 438 and 439A—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. Section 410 has also full force and any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court Division. This section has no reference to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The same applies to sections 435, 436, 438 and 439A. Nurul Huda vs Baharuddin 41 DLR 395.
S. 409–Under section 409 of the Code the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge who is deemed to be appointed as an Additional Sessions Judge for some limited purposes. Tajul Islam Vs. Billal Hossain, 18 BLC (2013)-AD-207.
S. 409-Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge who is deemed to be appointed as an Additional Sessions Judge for some limited purposes. This appeal arises out of the Leave granted by the Appellate Division in Criminal Petition for leave to appeal preferred by the present appellants against the judgment and order passed by a single Bench of the High Court Division in Criminal Revision discharging the Rule arising out of judgment and order passed by the learned Assistant Sessions Judge, Chandpur in Criminal Appeal dismissing the appeal and affirming the order of conviction and sentence passed by the learned Magistrate, Chandpur, convicting the appellants under section 147 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for 30 days. Appellate Division held that 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 and set aside the judgment and order of the High Court Division. Appellants appeal is remanded to the Court of Sessions Judge, Chandpur for disposal in accordance with law. Tajul Islam and others Vs. Mr. Billal Hossain and another, 18 MLR (2013)-AD-164.
Section 410—Non-appealing—accused— Benefit of acquittal—In the face of clear illegality committed by the learned Additional Sessions Judge in convicting all the 3 accused of the offence under section 396 of the Penal Code, if we do not record an order of acquittal in favour of accused Fazlul Huq, the non-appealing accused, it means that we are allowing an illegal order to perpetuate. In that view of the matter, we hold the entire order of conviction and sentence be set aside and the absenting accused Faziul Huq is also entitled to get the benefit of this order. Arzan Iman Ali vs State 48 DLR 287.
Section 410—The High Court Division sitting in appeal was bound to give due weight to the opinion of the trial Court with regard to the credibility and demeanour of the witnesses. State vs Abdus Sattar 43 DLR (AD) 44.
Section 410 The appellate Court's jurisdiction is co-extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues. The High Court Division has a wide appellate jurisdiction over all Courts and tribunals in Bangladesh inasmuch as it may, in its discretion, from any judgment and order of conviction and sentence passed by any Court of Sessions and tribunal. State vs Nurul Amin Baitha (Criminal) 75 DLR (AD) 187
Section 410-Ordinarily this Division does not interfere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. Jurisdiction of this Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. State vs Abdus Salam, 67 DLR (AD) 376
Sections 410 & 423-Since we have entered into the merit of the matter, considered the entire evidence on record, it will be a futile attempt to send the case of Ataur Rahman on remand after expressing opinion regarding his complicity on analysing the evidence of PWs 2-4. We do not approve the manner in which the High Court Division has dismissed the appeal of Ataur Rahman. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6
Sections 410 and 426-In conducting the appeal, the convict is entitled to enjoy the advantage of treating her/his appeal as continuation of trial, notwithstanding her/his status of remaining a convicted person from the perspective of presump- tion. Appeal, as the continuation of the trial, would not ipso facto bear the notion of remaining innocent until disposal of appeal. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148
Sections 410—423 read with—Employment of Labour (Standing Orders) Act (VIII of 1965)— Section 26.
Order of sentence passed by the Labour Court under the provisions of Employment of Labour (Standing Orders) Act is not appealable to the appellate authority under the Code of Criminal Procedure as there is no provision for such appeal under the Employment of Labour (Standing Orders) Act. Jagodish Chandra Dutta vs MH Azad 41DLR 257.
Section 410—Accused Ali Mia, though did not prefer any appeal against his conviction and sentence, there is no reason to keep him is custody on the basis of illegal evidence. Shah Alam and others vs State 52 DLR 567.
Section 410—The date of conviction and sentence pronounced by the trial Court should not be taken to be the starting point for the disqualification against the convict sitting Member on account of such conviction in a criminal case involving moral turpitude. HM Ershad vs Abdul Muqtadir Chowdhury 53 DLR 569.
Section 410-It is surprising to find the peculiar way of disposal of criminal appeal by the High Court Division that shirked responsibility misdirecting themselves and shouldered the same on Allah. This sort of disposal of criminal appeal is unknown to our criminal jurisprudence, this unwarranted method of administration of justice is disapproved. State vs Kh Zillul Bari 57 DLR (AD) 129.
If a
superior Court disposes a criminal matter, more particularly a criminal appeal
of such a great importance in such a light hearted manner without any
application of judicial mind then that will have a demoralizing effect on the
subordinate judiciary indisposing criminal justice in Bangladesh. Mahmudul
Islam @ Ratan Vs. The State), 20BLD (AD)249
Section 412—The right of appeal of a convicted accused is taken away if the court accepted the plea of guilty and convicted him on such plea. Ayar @ Ayaruddin vs State 56 DLR 494.
Section 417—Review of evidence—The reason given by the Judges of the High Court Division to disregard the evidence of PWs 2, 3 & 4 relying only upon the evidence of PW 7 is rather artificial. In an appeal by the State against acquittal it is quite open to the Court to review the evidence in order to see whether finding on which acquittal is based is perverse being in wanton disregard of good and unblemished evidence given by other witnesses. State vs Ashraf Ali 43 DLR (AD) 83.
Section 417(1)(2)-Under section 417(1) and (2) only the government or the complainant may file appeal against an order of acquittal. The informant could only file a revision against the order of the Chief Metropolitan Magistrate, but in this case a person who was not the complainant has filed an appeal which is not contemplated under the law. Nurul Alam vs Saleha Khatoon (Criminal), 73 DLR (AD) 153
Section 417—As a matter of practice the High Court Division normally grants bail to the persons who are acquitted after a full-fledged trial when the State prefers an appeal against the order of acquittal. Abdul Hafez Howlader alias Habibur Rahman vs State 51 DLR (AD) 67.
Sections 417, 418 and 423—Provisions under these sections give to the High Court Division full power to review the evidence upon which the order of acquittal was founded—No limitation should be placed upon that power. Shah Alam vs State 42 DLR (AD) 31.
Sections 417 and 439(4)(5)—Petitioner acquitted of the charge of dacoity by the trial Judge—Government had not preferred any appeal under section 417 CrPC—Section 439 CrPC does not authorise High Court Division to convert a finding of acquittal into one of conviction. Held— the Rule issued suo motu by the High Court Division was without jurisdiction. Jalal Uddin vs Bilkis Rahman & State 42 DLR 107.
Section 417—On an appeal for acquittal the appellate Court is not entitled to interfere with the decision of the trial Court on facts unless it has acted perversely or otherwise improperly. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 417—The Code drew no distinction between an appeal from an acquittal and an appeal from a conviction and no such distinction could be imposed by judicial decision. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 417—Before an order of acquittal is reversed it must be shown that the judgment is not only unreasonable or manifestly wrong but it is also manifestly perverse and unless such a finding can be made on the basis of materials on record the order of acquittal should not be interfered. State vs Wasikur Rahman 58 DLR (AD) 60.
Sections 417 & 423—In an appeal from acquittal, the appellate Court in exercise of its appellate authority is not entitled to interfere with the decisions unless those suffer from manifest illegality, legal infirmity and perversity rendering a positive miscarriage of justice. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 417(1)—Finding of acquittal cannot be said to be perverse if it is not absolutely against the evidence. State vs Shamima Arshad 52 DLR 617.
Section 417(1)(a)—Maintainability of appeal by witness against order of acquittal—The State under section 417(1)(a) of the Code is authorised to present an appeal against an order of acquittal passed by the Court of Sessions. But in the present case, the appeal was not preferred by the State. The appeal was filed before the High Court Division by a witness who is also the petitioner in the present petition for leave to appeal. Hence this leave petition is not maintainable in law. Fazar Ali Manik Chan vs Fazar Ali 43 DLR (AD) 129.
Sections 417(1)(b) & 439A—Where the State has not filed any appeal against the order of acquittal passed by a Magistrate in a police case the informant is competent under section 439A of the Code to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. Abu Taher vs Hasina Begum 50 DLR 19.
S. 417(2): There is no provision of second appeal; remedies against conviction or acquittal by lower appellate court lies in filing a revision only: Clearly section 417(2) of the CrPC relates to an appeal before the High Court Division which may be preferred by the complainant against acquittal from an original order of acquittal passed by any Court of Session. Where the lower appellate Court has reversed the findings of the trial Court by acquitting the accused, the only redress for the complainant is to file a revisional application before the High Court Division....(......Para 7). Ahmed Hossain Vs. Azizul Hoque 1 CLR (2013)-AD-131.
Section 417(3)—The special limitation provided in sub-section (3) of section 417 CrPC is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed in a case upon a petition of complaint. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198.
Section 417(3)—A case registered upon lodging of an Ejaher and culminating in charge- sheet and thereupon person(s) recommended by the police for prosecution was put on trial and the trial ends in acquittal and thereupon if Government files an appeal the ‘special limitation’ provided by section 417(3) of CrPC shall have no manner of application. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198.
Section 417A—Appeal by informant— Competency—The contention that an appeal at the instance of an informant from an inadequate sentence lies under section 417A has no substance. Abdul Aziz vs State 44 DLR 594.
Section 417A—That all judgment, whether conviction or acquittal are appealable under section 30(1) of the Special Powers Act. Under sub-section (1) of section 27, criminal cases coming within the ambit of the Special Powers Act can only be initiated on a report in writing made by a police officer not below the rank of Sub-Inspector So no private party has any right to initiate such cases. Section 30 seems to cover appeals by a the State. Therefore, this appeal is not maintainable under section 417(1) of CrPC. State vs Wanur Rahman 40 DLR 346.
Section 417A(2)—Section 417A(2) of the Code appeal lies to the appellate Court against the sentence on the ground of inadequacy. The appellate Court was the Court of Sessions but no appeal was filed before the Court of Sessions rather it was filed, long after the limitation, before the High Court Division. The very appeal was incompetent and the High Court Division acted illegally in entertaining the appeal and therefore, the judgment of the High Court Division is liable to be set aside.
In an appeal a sentence may not be enhanced whereas this may be done in revision and secondly that in revision and acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally exercisable in appeal as it may be exercised in revision by the High Court Division. GMM Rahman vs State 62 DLR (AD) 410.
Section 417A- Section 417A empowers the complainant to prefer appeal to the appellate court against the sentence on the ground of its in adequacy. Sub- section (3) of Section 417A provides that when an appeal has been filed against sentence on the ground of its inadequacy, the appellate court shall not enhance the sentence except after giving to the accused reasonable opportunity of showing cause against such enhancement. Shahidur Rahman Khadem =VS= The State, [3 LM (AD) 600]
Section 419-In the backdrop of repeated denial of police that Salauddin Ahmed is under their custody, we have no scope under section 491 of the Code to direct the police to bring up and produce Salauddin Ahmed before this Court. But, in our view, police cannot absolve their responsibility just by saying that Salauddin Ahmed is not under their custody. The State has a responsibility to protect the life and liberty of its citizen. The reply of police that Salauddin Ahmed is not under their custody is not enough. In fact, Police should come up with some positive news about the whereabouts of Mr Salauddin Ahmed. Hasina Ahmed vs State, 67 DLR 343
Section 420—The proviso to sub-section (1) of section 421 does not apply to appeals presented under section 420 of the Code. In the case of jail appeals the court can summarily dismiss the appeal on perusal of the papers without calling upon the appellant to appear. Ayar @ Ayaruddin vs State 56 DLR 494.
Section 420—The Inspector-General of Prisons is to circulate and get notified this judgment to every superintendent of jails all over the country within seven days for compliance so that the jail appeals of less privileged prisoners are communicated to the appropriate appellate Courts in the light of directions given. Ayar @ Ayaruddin vs State 56 DLR 44.
Section 420-When a prisoner in jail applies through the Superintendent of Jail for a copy of the judgment in order to prefer an appeal, it is superintendent’s business to procure and forward a copy applied for and to arrange that this is done. Ayar @ Ayaruddin vs State 56 DLR 494.
Section 421—In a case of absentia trial, limitation shall run from the date of knowledge of the judgment and not from the date of judgment. Jamal Ahmed alias Jamal vs State 58 DLR 419.
Section 422—Once the complaint has ended in conviction it was the State that came into picture and the State had to be given notice to sustain the conviction and complainant had no right to be given notice. Kamal Miah vs State 50 DLR 224.
Section 422—A criminal appeal cannot be dismissed on technical grounds once it is admitted for hearing by the court. After admission, a criminal appeal can be disposed of only on merit. Kamal Miah vs State 50 DLR 224.
Section 423—In view of the fact that the two foreigner-appellants have made a clean breast of their offence and never tried to beat the law by any smart manoeuvre and they have begged mercy of the court from the very beginning the sentence of the two foreigner appellants be reduced from life imprisonment to rigorous imprisonment for 7 years. Major (Retd) Ashrafuddin Sekander vs State 50 DLR (AD) 108.
S. 423-There is no scope to commute death sentence to life imprisonment where the killing is brutal and heinous. The State Vs. Farid Miah & Ors, 33 BLD (2013)-HCD-22.
Remand or retrial
An order of remand or
retrial is not to be made ordinarily unless it is absolutely necessary in the
interest of justice. When the accused has suffered for a long period for no
fault of his own, there should be no order for retrial after a long lapse of
time. Abdur Razzak alias Geda Vs. The State, 16BLD(HCD)312
Section 423—When it is found after a full trial that there was a mis-trial or trial without jurisdiction, the Court of appeal before directing a fresh trial by an appropriate Court should also see whether such direction should at all be given in the facts and circumstances of a particular case.
If it is found that there was no legal evidence to support the conviction then in that case it would be wholly wrong to direct a retrial because it would then be an useless exercise. Further, the prosecution should not be given a chance to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial. Asiman Begum vs State, represented by the Depuly Commissioner 51 DLR (AD) 18.
Section 423—If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mis-trial, the Court may not for ends of justice direct a retrial.
There is no question that the Court has undoubted right to direct a retrial where there has not been a trial in accordance with law. We are of the view that having regard to the facts and circumstances of the case and particularly in view of the fact that in the meantime (during pendency of appeal in this Court) the appellant has continued to suffer imprisonment, it is a fit and proper case in which the High Court Division should consider the case on merit also and then pass whatever order or orders it thinks appropriate in the interest of justice. Asiman Begum vs State, represented by the Deputy Commissioner 51 DLR (AD) 18.
Section 423—Though a lawyer was appointed to defend the absconding accused, the appointment did not serve the purpose—The accused should be given an opportunity to defend himself properly by cross-examining the PWs and for that purpose the case is liable to be sent back to the trial Court. Ismail vs State 51 DLR 497.
Section 423—In view of long detention of the appellants from the date of their arrest the prayer for commutation of sentence in respect of fine may be allowed. Rafiqul Islam @.Rafiq vs State 51 DLR 488.
Section 423—The appellants had to undergo the rituals of a protracted trial and the agonies arising out of the order of conviction and sentence passed and by now much of their sins has been expiated by way of burning of the heart during this long period. Court in therefore, inclined to take a lenient view in awarding sentence to them. Ali Hossain vs State 52 DLR 282.
Section 423—If a person is intended to be tried and punished with enhanced punishment or with punishment of a different kind as being a previous offender, the particulars of the previous conviction should be stated in the charge. The prosecution did not lead any evidence that the appellants were previously convicted persons. In that view, the Assistant Sessions Judge has awarded a harsh sentence to them. Bura Yunus vs State 59 DLR 549.
Section 423—The appellant had already undergone the ordeal of trial and after the conviction during pendency of the appeal before this Court continued to suffer imprisonment which was imposed on him in the mistrial, so in the interest of justice a retrial should not be directed. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527.
Sections 423 & 424—There has not been an elaborate discussion of the evidence on record. It is needless to say that a duty is cast upon the lower appellate Court to write out a proper judgment on facts while disposing of an appeal. Abdul Khaleque Master vs State 52 DLR (AD) 54.
Section, 423(1)(a)(b)—A finding of acquittal can be converted into one of conviction only under clause (a) of sub-section (1) of section 423 CrPC. The suo motu Rule is without jurisdiction. Jalaluddin vs Bilkis Rahman and State 42 DLR 107.
Section 423(i)(b)—Since the prosecution has totally failed to prove its case against any of the accused persons, non-appealing co-accused is also acquitted of the charge under section 382 Penal Code. Mofizul Islam vs State 54 DLR 221.
Section 423(1)(b)—When sentence of fine is imposed in addition to sentence of imprisonment, this will amount to enhancement of sentence. The appellate Court may enhance the sentence but such enhancement cannot be made unless the accused is given an opportunity of showing cause against such enhancement. Mizanur Rahman vs Surma Khatun 50 DLR 559.
Section 423(1)(b)(2)—Acquittal converted into conviction under section 423 CrPC—No interference in the absence of appeal against acquittal. Mofizuddin vs State 40 DLR (AD) 286.
Section 423(1)(b)(2)—The Appellate Court has jurisdiction under section 423(1)(b)(2) of Code of the Criminal Procedure to reverse an order of acquittal purporting to “alter the finding” of conviction. Mofizuddin vs State 40 DLR (AD) 286.
Section 423(b)(2)-The appellate court has power to alter the finding of the trial court and convict the accused person on the basis of the evidence on record. No restriction is placed on the power of the appellate court to alter the finding to any that it considers suitable to the purpose. The expression 'alter the finding' contem plates only an alteration of the finding of conviction which was appealed against and which was the subject matter of appeal. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, 3) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Section 423(b)(2)- If a palpable illegality is apparent in the trial Court's judgment while hearing an appeal from conviction, the appellate court can pass appropriate conviction for ends of justice on reappraisal of the evidence on record. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth All Shah, 68 DLR (AD) 13
Section 423-
Section 423 relates to 'Powers of Appellate Court in disposing of appeal' and this power of the appellate Court may include a Court subordinate to the High Court Division. The appellate Court has power to enhance the sentence under section 423 (bb) in an appeal for enhancement of sentence. So this power can be exercised only when an appeal is filed by the state or the complainant, and in other cases initiated on a police report, if the state does not prefer appeal, the informant can file a revision petition, but in the absence of none, the appellate court has no power to enhance the sentence. If the appellate Court has no power to enhance the sentence without an appeal or revision being filed against the inadequacy of sentence, the High Court Division cannot exercise the power except in cases provided under section 439(6) of the Code. Shahidur Rahman Khadem -VS- The State, [3 LM (AD) 600]
Sections 424 & 367—The Additional Sessions Judge sitting on appeal did not apply his mind at all in order to come to an independent decision. He came to the conclusion “found nothing illegal in the impugned order” just after quoting in his judgment some portions of the judgment of the trial Court. In such a position, no Rule need be issued—the case is sent back for delivering a proper judgment. Ekram Ali Fakir vs Abdus Samad Biswas 47 DLR 53.
Section 426—Bail after conviction—The accused could obtain bail from the Appellate Court or from the High Court Division and not from the trial Court which became functus officio after the filing and disposal of appeal against conviction. Dulal vs State 43 DLR 321.
Section 426—Bail—Suspension of sentence pending appeal—Release of appellants on bail— Sentence being in excess of one year Sessions Judge was not competent to grant such bail. Saidur Rahman vs State 40 DLR (AD) 281.
Section 426—Bail—Condition for the bail is quite reasonable and can be complied with by the person seeking bail without any difficulty but payment of fine involving huge amount of money as a condition for bail may not be possible— Impugned order of payment of fine as a condition for the bail is not supportable either in law or on the principle of reasonableness. Iqbal vs State 41 DLR (AD) 111.
Section 426—In cases of short term imprisonment, the judge should better dispose of the appeal very expeditiously failing which he may consider the question of bail (if raised again). Mahbub vs State 46 DLR (AD) 143.
Section 426—Bail in a pending appeal— The matter of granting bail by the High Court Division, during the period of emergency, in a pending appeal filed by the convict who has been convicted and sentenced under the provision of Anti-Corruption Commission Act, 2004 in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. Government of Bangladesh vs Sabera Aman 62 DLR (AD) 246.
Section 426–Bail in a pending appeal—The convict-appellant has been suffering from multifarious illness endangering life “at his advanced age of 58 years and he needs specialized, continuous and supervised treatment in a stress less condition”. Accordingly, on the ground of serious illness endangering life the convict- appellant may enlarged on bail. Iqbal Hasan Mahmood vs State 63 DLR 286.
Sections 426 & 497—Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life.
Appellate Division in some cases opined that a convict may be enlarged on bail if there is no chance of disposal of the appeal within the period of his sentence. A convict who is sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division. Bail granted to appellant-opposite-party Abdul Momin Sarder on 11-1-96 is cancelled and he is directed to surrender to his bail bond forthwith. State vs Abdul Momin Sardar 50 DLR 588.
Section 426-Granting bail Section 426 of the Code of Criminal Procedure. was given by the High Court Division while granting bail to the said convict who was sentenced to 7 (seven) years imprisonment. Thus, when discretion is exercised judiciously, not perversely, the same generally is not interfered with by the Apex Court, which is reluctant in interfering with the discretionary power of the High Court Division. Durnity Daman Commission -VS- Begum Khaleda Zia, [5 LM (AD) 207]
Section 426- In many cases, bail has been granted even in cases involving serious and heinous offences where the Court has observed that prima facie there is no legal evidence to sustain the conviction and there is chance to succeed in the appeal. In a number of cases, it has been also decided that where the sentence is relatively short and the appeal is not likely to be heard for some time, thus rendering the appeal infructuous, bail could be granted. On that consideration, to our knowledge, bail has been granted in cases where sentence of imprisonment extended to 3 (three) years...... Durnity Daman Commission -VS- Begum Khaleda Zia, [5 LM (AD) 207]
Section 426- Undoubtedly in any case, where a court of law exercises its discretion, such discretion must be exercised judiciously. The Court must not lose sight of the fact that section 426 of the Code provides that the Court granting bail must record its reason in writing. Once that is done, this Court does not readily interfere with the discretion exercised by the High Court Division......Durnity Daman Commission -VS- Begum Khaleda Zia, [5 LM (AD) 207]
Section 426-Undoubtedly in any case, where a court of law exercises its discretion, such discretion must be exercised judiciously. The Court must not lose sight of the fact that section 426 of the Code provides that the Court granting bail must record its reason in writing. Once that is done, this Court does not readily interfere with the discretion exercised by the High Court Division. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Section 426- The High Court Division in its wisdom considered the various maladies suffered by the appellant in the context of the fact that she is an aged woman of more than 73 years. Such reasoning cannot be said to be perverse. It is noted that the appellant was enlarged on ad-interim bail for a limited period. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Section 426-When discretion is exercised judiciously, not perversely, the same generally is not interfered with by the apex Court, which is reluctant in interfering with the discretionary power of the High Court Division. Durnity Daman Commis- sion vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Section 426- The power of the appellate Court to release a convicted person on bail is discretionary. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Section 426-In many cases, bail has been granted even in cases involving serious and heinous offences where the Court has observed that prima facie there is no legal evidence to sustain the conviction and there is chance to succeed in the appeal. In a number of cases, it has been also decided that where the sentence is relatively short and the appeal is not likely to be heard for some time, thus rendering the appeal infructuous, bail could be granted. On that consideration, to our knowledge, bail has been granted in cases where sentence of imprisonment extended to 3 (three) years. Durnity Daman Commis- sion vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Sections 426 and 498-Bail-In legal terminology "bail" is defined as temporary release of a prisoner from institutional custody in exchange of security given for the person to appear at a later date fixed for hearing. The concept of bail is relevant at two different and distinct stages, namely, pending trial of any offender and after conviction. The considerations for bail pending trial are entirely different from those for bail after conviction. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137
Section 426(1)-When a convicted is sentenced to life imprisonment or to a fixed term imprisonment and, on appeal, instead of putting him in confinement, if he is released on bail, then the execution of the sentence remains suspended. Similarly, on preferring appeal, if the convict does not wish to comply with the order of payment of fine or forfeiture of the property and prays to the appellate Court for its non- payment or non-forfeiture and, accordingly, the appeal Court allows the prayer, then it is said that the execution of sentence as to payment of fine or forfeiture is suspended. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148
Section 426(1)- Suspension of execution of sentence' means 'suspension of sentence. Conviction does not have the feature to be executable. Conviction is merely the findings of the Court. Because of securing suspension of sentence, thus, Conviction does not go away or does not become suspended. conviction remains intact until set aside on appeal. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148
Section 426(2)-When any statute prescribes conviction as a disqualification for contesting the local/national elections, for applying in any Government/non- Government service, for holding/ remaining/continuing in any Government /non-Government post, with the civil consequences it acquires the feature of execution and, thereby, it operates in its full rigour until and unless its operation is stayed by the appellate Court or the High Court Division. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148
Section 426(2)-While the appellate Court appears to be incompetent to suspend the operation of conviction due to not being empowered by section 426 of the Code or not being equipped by any other law, the High Court Division must not be seen to be lacking power to grant relief to a convict appellant who is in dire need of an order of stay of operation of the conviction towards enabling the convict to secure qualification for contesting the local/national elections, for applying in any Government/non- Government service, for holding/remaining in any Government/non-Government post etc. for a very short period, if the appeal cannot be disposed of quickly and the loss the convict-appellant would suffer is not compensable. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148
Sections 426(2) and 561A-The High Court Division may grant stay of con viction under sections 561A read with section 426(2) of the Code only in exceptional and rare circumstances where non-grant of stay would lead to injustice and irreversible consequences. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148
S. 427A (2)-Appeal against inadequacy of sentence. Power of the High Court Division in appeal and revision.
In this case appeal lay to the Sessions Judge but the appellant without filing appeal before the Sessions Judge filed an appeal before the High Court Division long after the period of limitation. The appeal was thus incompetent and as such the High Court Division was wrong in entertaining the appeal and in enhancing the sentence passes by the trial Court. With two exceptions, power exercisable by the High Court Division in appeal and revision are similar.
In appeal a sentence may not be enhanced whereas this may be done in revision In revision an acquittal shall not be converted into a conviction whereas this may be done in an appeal against an acquittal. G.M.M. Rahman Vs. The State, 2 ALR (2013)-AD-175.
Section 428—Additional evidence—Section 428 may be resorted to when such evidence either was not available at the trial or the party concerned was prevented from producing it, either by circumstances beyond its control or by reason of misunderstanding or mistake. Rajab Ali Zulfiqar vs State 45 DLR 705.
Section 428—The purpose of this section is to allow additional evidence at the appellate stage only and not to give an opportunity to the prosecution to fill up the lacuna in its case. Bakul vs State 47 DLR 486.
Section 428-Adjustment made at this stage after his retirement refund of money at latter stage, documents which has been produced after disposal of the case will not at all help the convict-appellant in order to absolve from the charge. AKM Mosharraf Hossain vs State, 65 DLR 564
Section 428-Before holding the trial news paper publication was made regarding the absconding accused and that news paper publication is lying with the record. After arrest by the police, convict was sent to Jail, wherefrom he filed the Jail Appeal putting his signature in the Vokalatnama. The signature of convict in his Vokalatnama and the signature put in the admit card are same and identical and, as such, there is no doubt that the admit card belongs to convict. State vs Jabed Jahangir, 66 DLR 579
Sections 428 & 561A—As the present application is an application under section 561A, there is no scope of taking further evidence under section 428 of the Code of Criminal Procedure. Shuinya @ Suruj Ali vs State 53 DLR 527.
Section 431—The power of the Court of law to reconsider fine which the deceased appeallant was entitled and if the right is taken away that will be denial of the principle of natural justice of the heirs and legal representative which their predecessor had. S Taibur Rahman vs State 55 DLR 709.
Sections 432, 424 and 367(1)—It is well- settled principle of law that for disposal of Criminal Appeal presence of an Advocate is not essential and the Appellate Court can dispose of the appeal on mere writing a judgment according to provisions of section 667(1) of CrPC. Abdul Basher vs State 40 DLR 248.
Section 435—A Court is undoubtedly inferior to another Court when an appeal lies from the former to the latter, State vs Auranga @ KM Hemayatuddin 46 DLR 524.
Section 435 read with section 439- The High Court Division as a revisional court ought to have disposed of the criminal revision on the basis of the evidence already on record. The order of rehearing by the appellate court below is found to be uncalled for, particularly after a decade. Helal Uddin (Md) vs State (Criminal) 75 DLR (AD) 178
Ss. 435 and 439-Instead of filing the application for bail, she ought to have challenged the cancellation of her bail before the High Court Division in its criminal revisional jurisdiction. Nazim Ahmed Vs. State (Criminal), 18 BLC (2013)-HCD-511
Section 435—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60.
Sections 435 and 436—Sessions Judge called for records of the case triable under the provisions of the Special Powers Act from the Court of the Magistrate in exercise of his power, under sections 435 and 436 CrPC and took cognizance of the offence after converting himself into a Special Tribunal—This is not contemplated by law. Satya Ranjan Sarda vs State 42 DLR 142.
With regard to the maintainability of the present revisional application, we are of the view that the application is maintainable in revisional form since the impugned under is void ab-initio. Moreover, this court has got power to adjudicate the propriety and legality of an order passed by any inferior Criminal Court even, suo-muto. [73 DLR 335]
Sections 435/439—A second revisional application by the self-same party is not barred to challenge an illegal order after dismissal of his earlier revisional application for default and not on merit. Learned Advocate for the petitioners did not argue on the question of merit of the impugned order. So his contention as to limitation in the facts and circumstances of the case does not appeal to us. In the above facts and circumstances were are of the view that revisional application filed beyond the period of limitation though should not be encouraged, cannot debar the Court from setting aside an illegal order of the subordinate Court in the interest of justice. Anower Hossain vs Md Idrish Miah 48 DLR 295
Sections 435 and 439—Interpretation of Statute—The expression “if the accused is in confinement” in section 439 CrPC is used as a condition precedent to bail. Abdus Samad vs State 41 DLR 291.
Sections 435/439—An application under section 439 of the Code of Criminal Procedure by an informant in a Sessions Case against order of discharging an accused is maintainable in spite of the position that the State has not filed such application. Abdur Rahman Kha vs State 56 DLR 213.
Sections 435, 438 and 439A—The legislature has consciously kept section 438 alive although the Sessions Judges have been invested with the powers under section 439A to make final orders enabling the litigants to choose the forum as to whether he would resort to the forum under section 438 or under section 439A with the risk of finality of the order that may be passed. Abdul Ahad@ Md Abdul Ahadvs State 52 DLR 379.
Sections 435 & 439—Revisional Power, scope of—Question whether the law laid own in I section 5(1)(e) of the Act, 1947 and section 4 of the Anti-Corruption Act, 1957 is discriminatory and violative of the provisions of the Constitution is not within the scope of the present Rule to be determined. HM Ershad vs State 45 DLR 533.
Sections 435 and 439—To be released on bail a person must be in custody or in some sort of confinement. Abdus Samad vs State 41 DLR 291.
Sections 435/439 and 561A—The High Court Division exercising power under section 561A of the Code is not supposed to embark upon an inquiry to ascertain sufficiency, reliability and admissibility of evidence—However, if a conviction order is passed absolutely without any legal evidence, it can be looked into in the present forum to secure ends of justice. Rezia Khatun vs State 56 DLR 208.
Sections 435, 439 & 561A—Power under sections 439 and 561A is different in nature— Section 439 read with section 435 refers to inferior Court under High Court Division— Exercise of power under section 561A is not limited to the inferior Court only. Jagodish Chandra Dutta vs MH Azad 41 DLR 257.
Sections 435 & 439A—The law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made can themselves overtake the law by ingenious contentions. It is true that in criminal matters the accused should get all protection under the law but it is also important that the law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made before the Court by a statutory authority can themselves overtake the law by resourceful enterprise in raising ingenious contentions in order to frustrate the prosecution on the threshold. The Court must strike a balance. We are of the view that the learned Sessions Judge failed to maintain that balance which has been restored by the High Court Division. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.
Sections 435, 438 & 439A—The Sessions Judge would have been well-advised to reject the revision petitions upon the view that the objection as to alleged lack of authority should be raised before the Court taking cognizance. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.
Sections 435, 438 & 439A—When the SEC was making a complaint of fraudulent acts against certain companies and their directors on the basis of an enquiry undertaken by an expert committee, a Court would be well-advised not to try to be more expert at the complaint stage because otherwise it will be an example of nipping the prosecution in the bud. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.
Section 436—Sessions Judge’s power to order enquiry—The Sessions Judge commits no illegality in setting aside the order of discharge of the accused passed by the Magistrate and in directing the latter to send the case record to the Court of the Sessions Judge along with statements recorded by the police. The order is within the scope of section 436 CrPC. But the Sessions Judge’s further order giving direction to send the accused for trial being in excess of his jurisdiction cannot be sustained. The Magistrate is left with his absolute discretion in the matter of taking cognizance of the offence and sending the accused-petitioners to the Court of Sessions for trial after holding further enquiry according to law. Motaleb vs State 43 DLR 519.
Section 436- The proviso of section makes provision for showing cause to an accused person who has been discharged, but consequent to dismissal of a complaint case by the Magistrate under section 203, when the complainant files revision before the Sessions Judge, there is no requirement in the law for affording opportunity of hearing to the accused person. Dr Akhtar- uz-zaman vs State, 70 DLR 513
Section 436—When the order of discharge has been made without entering into the merit of the case, a fresh complaint or a fresh first information report against the same accused person can be maintainable, when fresh materials come forward which were not available at the time of previous investigation or enquiry. Rasharaj Sarker vs State 52 DLR 598.
Section 436-Sessions Judge’s power to order inquiry—The jurisdiction of the Sessions Judge is wide enough to direct further inquiry by a Magistrate. If the Sessions Judge directs to make further inquiry by the Magistrate by holding a judicial inquiry it is fully within the express power given to the Sessions Judge under section 436 CrPC. Farid Ahmed vs State 44 DLR 30.
Section 436-The Magistrate seemed to have acted within his jurisdiction to decide, on assessment of evidence on record, whether all or some of the accused are to be sent for trial. The order of the Sessions Judge having the effect of directing the Magistrate to take cognizance of the 8 accused against whom the latter found no prima facie case is not within the scope of further inquiry contemplated under section 436 CrPC. Mohibar Rahman vs Kuti Miah 44 DLR 112.
Notice to the accused
Notice to the accused is
not necessary in a revision under section 436 Cr.P.C. for holding further
enquiry against the dismissal of a complaint. Sirajuddowla and others Vs. The
State and another, 15BLD(HCD) 607
Section 436-Sessions Judge re-assessed the evidence recorded by the Magistrate under section 202(2A) of the CrPC and apparently took cognizance of the case himself against the petitioners directing further enquiry into the matter by way of securing their attendance and ordering them to be sent up under section 205 CrPC before his court to stand trial.
Held—Order of the learned Sessions Judge is not contemplated in section 436 of the Code of Criminal Procedure and, as such, he acted illegally in interfering with the order of the learned Magistrate as such. Syed Ahmed vs Habibur Rahman 42 DLR 240.
Section 436-There is also no force in the contention that once the accused has been made party in the revisional application he acquires a right to be heard.
As provision under section 436 only directs notice in a case where a person has been discharged and not in the case of an accused to whom no process has been issued under section 204 and when the complaint has been dismissed without a notice to him. Sirajudullah vs State 48 DLR 76.
Sections 436, 439A and 561A—If any one is aggrieved by an order of discharge passed by a Magistrate, he can move the Superior Court under section 436 of the Code of Criminal Procedure for further enquiry but the Superior Court cannot direct the Magistrate to take cognisance of a case irrespective of the fact whether it is triable by a Magistrate or exclusively by the Court of Sessions. The Superior Coufl can merely order for further enquiry but cannot direct for taking cognisance of the offence. Jalaluddin vs State 60 DLR 581.
Sections 436, 204(3) & 203—The order of dismissal of the complaint passed under sections 203 and 204(3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary. The principle, that an order prejudicial to an accused should not be made, without giving him – an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76.
Sections 436, 205(1) & 203—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case.
Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant- respondents remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53.
Sections 436, 439 and 439A—Sessions Judge’s power to direct further, enquiry under section 436 CrPC on dismissal of complaint on an erroneous view of law. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.
Sections 437 & 439—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60.
Sections 436, 439A & 561A—Question raised in this Rule could very well be raised before the Sessions Judge and the Sessions Judge could set aside the order of the Magistrate framing charge against the petitioner if there was mont in the contention raised by the petitioner and after such discharge there was no scope for directing further enquiry under section 436 of the Code. Since this question was not noticed at the time of issuance of the Rule discharge of the same without considering merit of the same may cause undue hardship and unnecessary harassment to the petitioner. So this Court decided merit of the Rule which is otherwise not maintainable. Abdul Hai vs State 50 DLR 551.
Section 438—When the Magistrate has only called for the case diary for his perusal upon allegations made in the naraji petition that the same will show a prima facie case against the accused, the reference prayed for against the step is premature. Nurul Hoque vs Bazal Ahmed 48 DLR 327.
Section 438—Sessions Judges have been given revisional powers to make final orders but simultaneously their powers to make recommendation to the High Court Division for orders under section 438 have also been kept intact. Abdul Ahad vs State 52 DLR 379.
Sections 438 & 439A—Though Sessions Judge has got power to make a reference to the High Court Division, it is not necessary now to make such a reference if the revisional application before him is to set aside any order of the Magistrate as he is competent enough to set aside such order. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.
Sections 438, 439A & 561A—Reference— Since the petitioner could not make out a case of quashing of the proceedings and since no such power is vested in the Sessions Judge the impugned order refusing to make a reference to the High Court Division suffers from no illegality. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.
Section 439—The jurisdiction of a Single Judge to hear a revisional application against an order of acquittal passed in a case involving an offence punishable with sentence of imprisonment exceeding one year is barred. Ahsan Sarfun Nur vs Nurul Islam 42 DLR (AD) 90.
Section 439—Refusal of prayer for ad-interim stay while issuing Rule in criminal revision. When appellant clearly stated before the High Court Division while obtaining the Rule that she gave birth to a child just five months ago and it would be injurious to her health as also to the baby if both were to be placed under any type of custody at that critical stage it was not a judicious and sound exercise of discretion to refuse the said stay. Azima Begum vs Yusuf Khan 43 DLR (AD) 53.
Section 439—Revision against order of acquittal—When the appellate Court and the High Court Division upon evidence and circumstances which is not unreasonable or perverse refused to believe the prosecution case, this court merely because a different view is possible of the evidence does not interfere with an order of acquittal. Abdul Hamid Mollah vs Ali Mollah 44 DLR (AD) 223.
Section 439—Leave order was granted to examine the powers under section 439 CrPC as interpreted by the High Court Division. Kashem Ali vs State 40 DLR (AD) 294.
Section 439—High Court Division made three propositions in defining the area for exercise of its power and authority. Kashem Ali vs State 40 DLR (AD) 294.
Section 439—Administration of Criminal Justice with the change of time and circumstances attending the same—High Court Division to be a little more scrutinising even in a case of acquittal —whether misappreciation of evidence is never a sufficient ground for interfering with an acquittal. Kashem Ali vs State 40 DLR (AD) 294.
Section 439—Direction for filing a separate application for bail while moving a revisional application whether proper—When the appellants were already on bail granted by the lower Appellate Court, the direction that has been given after rejecting the prayer for bail is not proper and is not in keeping with the normal practice and; procedure that is traditionally followed in the High Court Division in revision. In that view o the matter, the appellants will remain on bail already granted, till disposal of the revision case. Baneanzuddin Ahmed vs State 43 DLR (AD) 12
Section 439—Application for condonation delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247.
Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40.
Section 439—Application for condonation of delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247.
Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40.
Section 439—High Court Division in exercise of its power under section 439 CrPC has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act.
The application on which the instant Rule was issued and was filed under section 439 of the Code of Criminal Procedure. We, therefore, find that this Court has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act, 1965. Jagodish Chandra Dutta vs MH Azad 41 DLR 257.
Section 439—This Court for rectification of injustice may also go into facts, if in the determination of any question of facts, onus is wrongly placed upon any party or an incorrect principle has been applied in determining the question of fact or any material piece of evidence has been ignored or due to misconception of law, a wrong view has been taken by the court below.
This court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the propriety of the impugned order or finding in question. In this view of ours, we are supported by a number of decisions of this court reported in 35 DLR (AD) 127 (Shafiqur Rahman vs Nurul Islam Chowdhury), 18 DLR (SC) 289 (Feroze Khan vs Captain Ghulam Nabi Khan), 15 DLR (SC) 150 (Muhammad Sami Ullah Khan vs State). Khandakar Md Moniruzzaman vs State 47 DLR 341.
Section 439—The acquittal of co-accused whose case stands on the same footing as that of the appellants’ cannot be a ground for their acquittal when there is sufficient evidence on record justifying their conviction. A suo motu Rule is issued against acquitted accused to show cause why the order of their acquittal shall not be set aside and be not convicted like the appellants as they too appear to be involved in the offences proved against the appellants. Abdul Ali vs State 46 DLR 338.
Section 439—In exercise of revisional jurisdiction High Court Division can in appropriate cases disturb findings of fact. Moslem All Mollah alias Moslem Molla vs State 48 DLR 427
Section 439—নিম্ন আদালত সাক্ষ্য প্রমাণ বিবেচনা করে যে সিদ্ধান্তে উপনীত হয়েছেন তার সাথে দ্বিমত পোষণ করলেই রিভিসন মামলার আসামীদের খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃ বিচারে পাঠান সঠিক নয় । শুধুমাত্র নিম্ন আদালতের সিদ্ধান্ত স্পষ্টতঃ ভ্রমাত্বক বা নায়ভ্রস্ট হলে বা নথি অস্পস্ট হলে বা আদালতের এখতিয়ার ত্রুটি পূর্ণ হলেই খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃবিচারে পাঠান উচিত । Abdul Aziz vs Sekendar Ali 50 DLR 111.
Section 439—The High Court Division may also suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice. Reazuddin Ahmed vs State 49 DLR (AD) 64.
Section 439—It is to be borne in mind that the High Court Division does not function as a court of revision for permitting the guilty person to escape the just reward of their misdoing on the ground of an unsubstantial technicality. Whether or not the High Court Division will exercise its Revisional jurisdiction in a given case must depend upon the facts and circumstances of that case only. Syed Ahmed vs Abdul Khaleque 51 DLR 43.
Section 439—Merely because the court deciding a revision may arrive at a different conclusion would be justifiable in reversing the decision of the trial Court unless it is possible to demonstrate with certainty that none of the grounds upon which trial Court acquitted the accused is at all supportable. Ali Akbar vs State 51 DLR 268.
Section 439—The judgment of the trial Court lacks in certain essential findings in respect of the offence but this by itself cannot be a sufficient ground for acquittal of the accused persons on appeal of in the face of evidence on record proving their guilt. Jahiruddin Ahmed vs Yasinuddin 52 DLR 97.
Section 439—As a rule of practice Court regards 60 days as the period of limitation for filing a criminal revision. In spite of this, nothing prevents the Court from entertaining a revisional application filed beyond 60 days when the applicant can satisfy the Court that he was prevented by any sufficient cause from filing the revision earlier. Khadem Ali vs State 52 DLR 281.
Section 439—A Court may cancel the bail granted either by itself or by a Court subordinate to it when allegations for cancellation are made by giving substantive proof of overt act on the part of the accused against the prosecution witness and not merely on vague, wild and general allegations. Mainuddin Chowdhury & others vs State 53 DLR 416.
Section 439—Any person could bring to the notice of Court an illegality or material irregularity in the conduct of judicial proceedings by invoking revisional powers of the High Court Division under section 439 of the Code. Abdur Rahman Kha vs State 56 DLR 213.
Section 439—In the instant case, there is no cogent reason to send the case back on remand on the flimsy ground that the prosecution has failed to file Kabinnama properly. Hence, retrial be allowed for ends of justice. Ashraful Alam State 57 DLR 718.
Section 439—The revisional court does not interfere with the concurrent findings of fact save in exceptional circumstances as when a question of law of general public importance arises or a decision shocks the conscience of the Court. Montu vs State 57 DLR 504.
Section 439—The revisional court is to look into the question whether there has been gross negligence on the part of the petitioner or inordinate delay in moving the revision application. Khaled Ahmed Chowdhury vs State 57 DLR 694.
Section 439—Court can take suo motu cognisance of the matter under section 439, CrPC and set aside the conviction and sentence of other accused persons even though they were tried and convicted and sentenced in absentia and could not prefer any appeal. Abdus Sattar @ A. Sattar @ Sottar vs State 58 DLR 415.
Section 439—In view of the fact that the petitioner was aged only 17 at the time of occurrence and there is no specific act of violence attributed to him, the maximum sentence awardable under the section is felt to be inappropriate and unwarranted. Rafiqul Islam vs State 58 DLR 362.
Sections 439 & 439A—Revisional power of the High Court Division—It is true that the party in a revision case under section 439A is debarred from agitating his point before the High Court Division under section 439 of the Code, but the power has not been restricted by any clause of section 439 or by any law if it is considered necessary to prevent the abuse of the process of the Court. The order of the Sessions Judge being not in accordance with law requires interference and the aid of section 561A of the Code can be appropriately invoked there being no scope for a second revision. Dr Md Abdul Baten vs State 43 DLR 60.
Suomotu rule by the High
Court Division
Under Section 439 of the
Cr.P.C, the High Court Division may suomotu call for the record of the Courts
subordinate to it and set aside any order passed by such Courts in any legal
proceeding which has caused mis- carriage of justice, Md. Reazuddin Ahmed Vs.
The State and another, 17BLD (AD) 123
Sections 439 & 435—The Additional Sessions Judge did not point out any illegality or irregularity in recording the evidence of witnesses examined by the prosecution or in the trial Court’s refusal to examine any witness produced. In such circumstances there was no justification for the Judge to make order permitting to examine witnesses at the time of fresh trial on remand that was ordered. Shamsul Haque Bhuiyan vs State 49 DLR 37.
Sections 439 & 561A—Session 561A has been put under Chapter XLVI of the Code as “Miscellaneous;” so an application under this section must be registered as a miscellaneous case and not as a revision case under section 439(1) or under both sections. Sher Ali vs State 46 DLR (AD) 67.
Sections 439, 439A & 561A—Propriety of exercising jurisdiction under section 561A CrPC to quash Magistrate’s order drawing up proceeding under section 145 CrPC—As the High Court Division’s revisional jurisdiction is concurrent with that of the Sessions Judge and although the High Court Division could decline to interfere for not moving the Sessions Judge, the interference that has been made cannot be said to be without jurisdiction. Jurisdiction under section 561A CrPC is not ousted in the presence of the revisional jurisdiction of the Sessions Judge under section 439A of the Code. The only question will be, has any case been made out either under section 439 or 561A of the Code? The answer will vary from case to case. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.
Sections 439 & 497—Since the petitioner did not get any opportunity to resist the application for cancellation of his bail and to present his case for maintaining the order granting him bail, the impugned order cancelling bail is set aside and the court in seisin of the case is directed to consider the matter afresh. Harun vs State 51 DLR 33.
Sections 439, 497(5) & 498—Section 497(5) gives power to High Court Division to cancel bail to accused admitted on bail. Section 498 of the code does not empower High Court Division or Court of Sessions again to admit an accused on bail after his cancellation of bail. In the event of cancellation of bail by a Court of Session the accused again cannot invoke jurisdiction under section 498 of the Code and the remedy that lay for him is invoking Revisional Power under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259.
Sections 439 & 498—Whenever a matter is brought to the notice of High Court Division and High Court Division is satisfied that a case is made out for exercising Revisional power suo moto, it can always do so in the interest of justice and can treat an incompetent proceeding to be a proceeding under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259.
Sections 439(4) and 439A(2)—No Second revision lies in view of the law in Sections 439(4) and 439(A)(2) of the CrPC. The purported distinction sought to be drawn by the learned Judge of the High Court Division was mis-conceived and the obiter was unwarranted. Hazi Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.
Sections 439(4) & 561A—Under section 561A the exercise of inherent power is not restricted by any clause like section 439—The Court can exercise this power.
So we think it proper to exercise the inherent power under section 561A the exercise of which is not restricted by any clause like section 439. In section 439 of the Code there is a bar, as subsection (4) of the section provides to the effect that in an appealable case the party who has right to appeal cannot invoke section 439. But there is no such restriction in section 561A. Khalilur Rahman vs State 41 DLR 385.
Sections 439(4) & 439A—The idea of the High Court Division that both the courts—one under section 439(4), the other under section 439A—are equal in power and the judgment of one is the judgment of another, appears to be grotesque displaying perversity of thought. Sher Ali (Md) vs State 46 DLR (AD) 67.
Section 439A- The complainant- respondent can file a criminal revision under section 439A of the Code of Criminal Procedure against the judgment and order dated 28.09.2002 passed by the learned Metropolitan Magistrate, Dhaka in G.R. No.495 of 2001 but inadvertently he filed an appeal. On the facts and in the circumstances of the case, we are of the view that the memo of appeal may be treated as a revision and the learned Sessions Judge or any other Court shall dispose of the revision in accordance with law.......Enayet Chowdhury (Md.) =VS= The State, [3 LM (AD) 554]
Section 439-The revisional juris- diction of the High Court Division vested in section 439 read with section 435 of the Code is exercised only in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality or for prevention of gross miscarriage of justice. Major Md Nazmul Haquevs State, 70 DLR 293
Section 439(2)- When any Court passes an order against a person, who has been discharged under sections 241A/ 265C, terming and treating him as an accused and thereby to commence investigation/further investigation/ inquiry against the discharged person, it would be an order made to the prejudice of the accused', as enunciated in section 439(2). When an order of judicial inquiry is passed by any Sessions Judge/Magistrate, it cannot be termed as an order 'prejudicial' to the accused, for, the accused-petitioner must not speculate in advance that the outcome of the judicial inquiry shall be against her/him. Dr Akhtaruzzaman vs State, 70 DLR 513
Sections 439(4) and 561A-Miscella- neous case under section 561A of the Code is hit by sub-section (4) of section 439 of the Code. Firozul Islam vs State, 70 DLR 744
Sections 439A and 439(5)- No revision against the order of acquittal passed by the Magistrate, lies under section 439A as it is barred under section 439(5) of the Code. Ismail vs State, 64 DLR 473
Sections 439A and 561A-The extra ordinary power of the High Court Division under section 561A of the Code cannot be invoked by a person after becoming unsuccessful in an application under section 439A of the Code except for some specific purposes set out in the provision itself, that is, to give effect to any order under the Code or to prevent the abuse of the process of any Court or to secure the ends of justice. Firozul Islam vs State, 70 DLR 744
Sections 439(4) & 561A—As there is nothing in the impugned order requiring to prevent abuse of the process of the Court or to secure the ends of justice, the revisional application is barred under the amended provision of section 439(4) of the CrPC. Anower Hossain vs Md Idrish Miah 48 DLR 295.
Section 439(4)—Scope of a revision against an order of acquittal is very limited in view of the provision of sub-section (4) of section 439 of the Code and decisions of the higher courts.
If the informant could prefer an appeal on the failure of the state to do so then the result could have been otherwise. Moreover, complainant has been given a limited right of appeal against an order of acquittal under the amended sub-section (2) of section 417 of the Code only on the ground of error of law. In such circumstances informant should also be given right to prefer appeal like the complainant and both of them right of appeal on the grounds of error of fact as well. Ali Akbar State 51 DLR 268.
Sections 439(4), 439A & 561A—No Court can claim inherent jurisdiction to exercise power expressly taken away by legislation.
Where there is an express provision in the Code barring the exercise of a particular jurisdiction (as under section 439) of this Court the jurisdiction may not be exercised under a general provision of the Code as under section 561A of the Code. In this connection reference may be made to the case of Kumar Singh Chhayor vs Emperor reported in AIR 1946 (Privy Council) 169 (172) wherein the Privy Council held that “no court can claim inherent jurisdiction to exercise powers expressly taken away by legislation” The instant application is hit by both sections 439A(2) and 439A of the Code. Abdul Jalil vs State 47 DLR 167.
Sections 439(4), 439A & 561A—The Sessions Judge’s decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. He is free to go to any appropriate forum to challenge the Sessions Judge’s decision. But he cannot go to the High Court Division with another revisional application, as such, an application—better known as second revision—is expressly barred by section 439.
Though the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still it can interfere with the Sessions Judge’s order by invoking its inherent for the limited purposes as set out in that, section namely, ‘to give effect to any order under Code, or to prevent abuse of the process of any court or otherwise to secure ends of justice’. Sher Ali vs State 46 DLR (AD) 67.
Ss. 439 and 561A-Securities and Exchange Ordinance XIV of 1969
Ss. 17(e)(IT) (IV)-The learned Additional Sessions Judge, Dhaka framed changes on 16.3.1999 against the accused petitioner under section 17(e)(II)(iv) of the Securities and Exchange Ordinance, 1969 after hearing the parties. The petitioner challenged this order of framing charges against him. Prof Mahbub Ahmed Vs. Securities and Exchange Commission, 2 ALR (2013)-HCD-27.
S. 439–If the Magistrate had passed an order of police remand despite the fact that the accused had been suffering for ailment, the latter had his remedy to prefer a revision petition before the Metropolitan Sessions Judge against the order. State Vs. Md. Aman Ullah Aman , 18 BLC (2013)-AD-81.
S. 439-No Provision for second Revision:
An order passed by the Sessions Judge or Additional Judge, as the case may be, under section 439A of the CrPC is not amenable to the revisional jurisdiction of the High Court Division under section 439 of the Cr.PC ...(Para 13). Md. Joaharul Islam Vs. The State (Criminal), 1 CLR (2013)-AD-146.
Sections 439A—Jurisdiction of the Sessions Judge under section 439A is co-extensive with the revisional jurisdiction of this Court in all matters except quashing a proceeding.
After the insertion of section 439A Sessions Judge in exercise of revisional power can set aside any order of the subordinate Criminal Court in addition to directing further enquiry under section 436 of the Code but cannot quash a proceeding. Abdul Hai vs State 50 DLR 551.
Section 439A—Where the State does not file any appeal against the order of acquittal in a police case the informant is competent to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. But the Court of revision cannot convert a finding of acquittal into a finding of conviction. Amjad Hossain vs State 49 DLR 64.
Sections 439A & 173—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 Ain bit 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-honoured and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of is 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 Latfur 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 All vs State 46 DLR (AD) 67.
Sections 439 & 439A—A second revision does not lie under section 439 of the Code against the judgment and order of the Sessions Judge passed under section 439A of the Code as the same has been made an absolute bar under sub-section (4) of section 439 of the Code. Mariam Begum vs State 53 DLR 226.
Sections 439A & 561A—lnherent jurisdiction whether available to one losing in revision— The inherent jurisdiction of the High Court Division will be available even to a party who has lost in revision before the Sessions Judge. But it must be clearly borne in mind that the powers under section 561A being extraordinary in nature, should be exercised sparingly and where such exercise is essential and justified by the tests specially laid down in the provision itself. Aminul Islam vs Mujibur Rahman 45 DLR (AD) 9.
Sections 439A & 561A—Sessions Judge acted illegally and without jurisdiction in quashing the proceeding of the case pending in the Court of Sadar Upazila Magistrate in exercise of his power under section 439A of the Code of Criminal Procedure because the power of quashing a proceeding is available only under section 561A CrPC. Zahurullah vs Nurul Islam 48 DLR 386.
Sections 439A & 561A—Revisional jurisdiction of the High Court Division—Revision in a case arising out of section 145 CrPC. A party who has been unsuccessful in revision under section 439A CrPC is not totally debarred from invoking the jurisdiction of the High Court Division under section 561A. The opening words of this latter section—”Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division” repels any contention of such debarment. Aminul Islam vs Mujibur Rahman 44 DLR (AD) 56.
Section 440—Under section 440 of the Code a party or his Advocate has no right to be heard by a court exercising revisional power and it is the discretion of the court to hear such a party or his advocate.
If an Advocate fails to appear at the time of hearing of a criminal revision for whatever reason, this court cannot allow him to be heard by reopening the matter setting aside a judgment already pronounced and signed. Serajul Islam vs Faziul Hoque 47 DLR 480.
Section 465—When in a trial before the Court of Sessions it is made to appear to the Court that the accused facing the trial is of unsound mind and consequently incapable of making his defence, the court is required to enquire into the question of insanity, if necessary by taking evidence, to satisfy itself whether he is fit to make his defence. State vs Abdus Samad @ Samad Ali 54 DLR 590.
Section 465-The provisions of the section are mandatory and failure of the Court in this regard rendered the entire subsequent proceedings illegal and is of no legal effect which would vitiate the conviction and sentence. Wally Ahmed alias Babi vs State 58 DLR 433.
Sections 467 and 471—Complaint not having been made by a competent court, the criminal proceeding under sections 467 and 471 of the Penal Code has to be quashed. Sona Mia vs State 42 DLR 8.
Section 471(1)—When the accused comes within the definition of a ‘criminal lunatic’ he is liable to be detained in any asylum. Nikhil Chandra Halder vs State 54 DLR 148.
Section 476—Rule issued by the High Court Division on the appellants and two advocates to show cause why complaint should not be lodged against them under section 476 CrPC was m1e absolute against the appellants who then appealed. High Court Division issued a suo motu Rule in Criminal Revision No. 43 of 1986, upon the appellants and two Advocates to show cause as to why a complaint should not be lodged against them under section 476 of the Code of Criminal Procedure as they appeared to have practised fraud upon the Court by filing a false petition of compromise. The Rule against the appellants was made absolute, but it was discharged against the two Advocates. Hence this appeal. Abdul Gafur vs State 41 DLR (AD) 127.
Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah (Md) vs State 50 DLR 629.
Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah vs State 50 DLR 629.
Section 476-The Court has enough power to lodge complaint without holding any enquiry when from the proved facts he is prima fade satisfied that an offence has been committed before him in a proceeding or in relation thereto even without hearing the party complained against. Naogaon Rice Mills Ltd vs Pubali Bank Ltd 56 DLR 543.
Section 476—It appears that under the provision of section 476 of the Code of Criminal Procedure any court is empowered to send for appropriate steps against a person who is alleged to have created a forged document and submitted the same in a proceeding as an evidence in order to obtain a legal benefit out of the said forged document. But before embarking upon the provision of section 476 of the Code of Criminal Procedure it is the precondition of the provision that the proceeding in which the forged document has been filed must have been ended and any application under section 476, Code of Criminal Procedure filed by any party before that court cannot be considered unless the proceeding in which the said forged document has been filed has ended. Noor Alam Hossain vs State 59 DLR 322.
Section 476—The provision laid down in section 476 of the Code does not make the preliminary inquiry an obligatory one, rather it is left to the court making it discretionary which should be judicially exercised. Abu Yousuf vs State 62 DLR 421.
Suomotu Rule
A suomotu Rule was issued
by the High Court Division under section 476 of the Code upon delinquent Abdul
Majid to show cause as to why an inquiry should not be made to ascertain as to
whether he gave false evidence as PW 2 before a Bar Council Tribunal in a
complaint case and thereby committed an of- fence punishable under section 193
of the Penal Code. Abdul Hamid Advocate Vs. Bangladesh Bar Council and others,
17BLD(HCD) 547
Sections 480 and 482—The Tribunal shall have the same powers as vested in a Civil Court for the purpose of inquiry and every enquiry as such shall be-deemed to be judicial proceeding within the meaning of sections 193 and 228 of the Penal Code—A Tribunal shall be deemed to be a Civil Court for the purposes of sections 480 and 482 CrPC. Muhammad Raushan Ali vs Bangladesh Bar Council 42 DLR 201.
Section 480 Section 480 of the Code of Criminal Procedure provides the procedure. This section reads as under: -
When any such offence as is described in section 175, section 178, section 179, section 180 or section 228 or the Penal Code is committed in the view of presence of any Civil, Criminal Or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred taka, and in default of payment. to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. Bangladesh -VS- Naznin Begum (Most.), [3 LM (AD) 66]
Section 488—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.
It can safely be presumed that our law makers while promulgating Ordinance No. XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.
Section 488—Family Courts can entertain, try and dispose of any suit relating to or arising out of maintenance but as section 488 CrPC does not empower the Magistrate to entertain, try and dispose of any suit i.e. any matter of civil nature, power of Magistrate under section 488 CrPC has not been ousted consequent to the establishment of the Family Courts, Rezaul Karim vs Rashida Begum 48 DLR 416.
Section 488—Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR175.
Section 488—Order of maintenance of wife and son—the purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a family court matter. Md Abdul Khaleque vs Selina Begum 42 DLR 450.
Section 491—High Court may pass an order under section 491 CrPC at any time. The phrases “illegally” or “improperly” used in the sub-section (b) of section 491 of the Code mean that when a person is not detained within the provisions of any law, the detention becomes an illegal detention. The scope of section 491 CrPC is wider than the scope of constitutional provision. (Article 102 of the Constitution). Syeda Rezia Begum vs Bangladesh 40 DLR 210.
Habeas Corpus
The Supreme Court being the
guardian of the Constitution and protector of the liberty of the citizens,
Sub-section (3) of section 491 Cr.P.C. does not debar the High Court Divi- sion
from examining the case of a detenu to satisfy itself if the detenu is
illegally and un- lawfully detained or that he is being detained without any lawful
authority for non-compliance of any mandatory provision of law or for
colourable exercise of powers and to declare his detention illegal if materials
on record do not justify it. Mallick Tarikul Islam Vs. The Secretary, Ministry
of Home Affairs and others, 14BLD (HCD)156) Ref: I B.SC.D. 119; 38 DLR 93; 28
DLR 259:27 DLR(SC) 41-Cited
Habeas Corpus
Custody of a victim of
abduction In deciding the custody of a victim girl in an application under
section 491 Cr.P.C. if the High Court Division finds that the victim is major
about 18 years old, there remains nothing for the trial court to decide the
question of age of the victim. In such a case the High Court Division should
make it expressly clear that its finding on the age of the victim was only tentative
in nature and it was only for the purpose of deciding the custody of the victim
girl and the trial court was free to take its own decision on the question on
the basis of evidence before him-Code of Criminal Procedure, 1898 (V of 1898)
Section. 491 Khairunnessa Vs. Illy Begum and an- other, 16BLD (AD) 124
Section 491—And Constitution of Bangladesh (as amended upto date) Article 102—Court’s duty to hear the matter and pronounce its decision at the earliest without waiting for Advisory Board’s report regarding the legality or otherwise of the detenu’s detention beyond the scope of the Special Powers Act.
In view of the clear provisions of section 491 CrPC (as well as under Article 102 of the Constitution) it is the duty of this Court to hear the matter giving opportunity to both the parties to make their written and oral submissions and pronounce its decision as early as possible without waiting for the Advisory Board to report its opinion to the Government regarding the question whether the detenu is being illegally detained beyond the scope of the Special Powers Act, 1974. Dr Md Habibullah vs Secretary, Ministry of Home Affairs 41 DLR 160.
Section 491—Production of victim girl before the Upazila Court for determination of age and also in the matter of her custody.
In the matter of guardianship and custody of the person of a minor the court may put the minor in the custody of an appropriate person for the minor’s welfare or may keep the minor in neutral custody. Sukhendra Chandra Das vs Secretary Ministry of Home Affairs 42 DLR 79.
Section 491—Habeas Corpus—Extension of detention after expiry of initial period of detention —Order dated 22-5-1989 by the Ministry of Home Affairs was made after the expiry of 30 days from the date of first order of detention by the Additional District Magistrate. The Government have not been authorised to extend the period of detention with retrospective effect. The detenu is therefore detained under an illegal order of detention and is directed to be released forthwith. Momtaz Sultana vs Secretary Ministry of Home Affairs 42 DLR 457.
Section 491—Determination of age of a person in custody for the purpose of her guardianship—Isolated statement of her father in such a case in respect of her age cannot be accepted as true unless it is supported by “corroborative evidence. If a girl is found below 16 and taken away without the consent of the guardian then it will be an offence and the guardian will be entitled to her custody. Even if it is presumed that at time of occurrence of her kidnapping the detenu was minor but now when she is found major the Court has no jurisdiction to, compel her to go with her father. Manindra Kumar Malakar vs Ministry of Home Affairs 43 DLR 71.
Section 491—Directions of the nature of a Habeas Corpus, scope of—The argument that the scope of section 491 CrPC is narrower than that of Article 102 of the Constitution has no force. Its scope is not hedged by constitutional limitation. In constitutional provision it is to be seen whether the detenu is being held without any lawful authority and in a matter under section 491 it is only required to be seen whether the detention order is illegal and/or improper. Pearu Md Ferdous Alam Khan for Serajul Alam Khan (Detenu) vs State 44 DLR 603.
Section 491—The High Court Division can exercise its jurisdiction not only in declaring the detention of the detenu illegal but also declaring the proceedings upon which the detenu was held in detention to be illegal and void. State vs Deputy Commissioner Satkhira. 45 DLR 643.
Section 491—Judicial custody—Dispute over custody of alleged victim girl—Why father is refused to have her custody—A girl has been kept now in judicial custody though she is neither an accused or a witness in the relevant case. The custody or detention of a victim girl is different from that of a criminal or a political detenu. Judicial custody has the complexion of the custody of a guardian. This custody is necessary for giving the girl a chance to make up her mind and develop her independent opinion free from external influence. The facts and circumstances of each case will determine as to how and when the inherent discretion of the court for judicial is to be exercised. Dr Kazi Mozammel Haque vs State 45 DLR 197.
Section 491—The girl’s age at the time of occurrence may be relevant for the alleged offence committed but for the purpose of custody the girl’s present age is more pertinent. Nurunnahar Khatun vs State 46 DLR 112.
Section 491— When there has been a judgment and conviction passed by a Court, the High Court cannot interfere under section 491 on the ground of discovery of irregularities.
Section 491 of the Code of Criminal Procedure could come into play only when there was an illegal detention by an Executive Order by private individuals or even by a Court if the Court had no jurisdiction to try the case. A court having jurisdiction to try a case has a jurisdiction also to arrive at its own conclusion however wrong. Bakul Miah vs Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka 46 DLR 530.
Section 491—Judicial custody of victim girl —As soon as the girl attains the age of 18 years from 1-12-1978 she must be released from thea judicial custody on her own bond even if the criminal case in which she is kept in custody remains pending. Hasina Begum vs State 48 DLR 300.
Section 491—When it is found fro4 materials on record that the alleged victim girl is aged above 16 and not an accused in the case, the order of her judicial custody is set aside and the Deputy Commissioner is directed to set her at liberty. Tarapada Sarker vs State 49 DLR 360.
Section 491—In the appeal against the order of bail the matter of custody of the victim girl was not to be decided. The Court should have considered the Miscellaneous Case filed by the appellant under section 491 CrPC on merit. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.
Section 491—The Judges were not sitting in appeal or revision as would entitle them to proceed with the matter even in the absence of the parties. The only course open was to dismiss the Miscellaneous Case for default of the petitioner. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.
Section 491—Having considered all aspects of the matter it will be in the best interest of the girl if she is released from custody and given to the care of her father. it is also necessary to see that the accused does not feel prejudiced at the trial because of the girl remaining under the care of the informant. The accused will be at liberty to pray before the trial Court for her production in Court if it is found necessary. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.
Section 491—Primary evidence being there that the girl is minor and that she is the victim of an offence it is right and proper that the girl should stay with her parents rather than be given to the family of the accused. The girl cannot be allowed to make her own choice because, prima facie, it appears that she is a minor. Jharna Rani Saha vs Khondaker Zayedul Hoque alias Jahangir 52 DLR (AD) 66.
Section 491—When a person was put into judicial custody by an order of a competent court of law unless that order is set aside detention cannot be considered as illegal. Tarun Karmaker vs State 53 DLR 135.
Section 491—In view of the provisions of section 491(1)(b) the present application under section 491 is not maintainable as the detenu was put into custody by an order of the Sessions Judge and as the same order is still in force. Tarun Karmaker vs State and ors 53 DLR 135.
Section 491—There are five clauses under sub-section(1) and there are 3 sub-sections in this section but none empower the Court to determine the question of custody of any minor. Tarun Karmaker vs State 53 DLR 135.
Section 491—When there is only an ad interim bail and that too for a limited period this Court is not inclined to interfere in the matter. Bangladesh vs Md Naziur Rahman 54 DLR (AD) 157.
Section 491—An order of detention passed on fictitious vague and indefinite grounds and founded on colourable satisfaction affecting the right of a citizen, and not in the larger interest of the society and public at large, must be quashed. Aftab Hossain (Md) vs Bangladesh 54 DLR 266.
Section 491—The detenu Rahat having been detained to abstain himself from perpetrating torture/repression in the locality of Kamrangirchar under Nadim Group terrorists, of the detention order is well-grounded in the fact and circumstances of the case. Abul Member and Abul Hassain vs Secretary, Ministry of Home Affairs 54 DLR 392.
Section 491—An application under this section cannot be rejected on the ground that no statement has been made as to the locus standi of the petitioner to challenge the order of detention or as to how the petitioner is aggrieved by the order of detention, if full particulars of the detenu and the detention are there. Zilaluddin (Md) vs Secretary, Ministry of Home Affairs 54 DLR 625.
Section 491—An application under section 491 of the Code of Criminal Procedure is maintainable for custody of a minor to see that the minor is not held illegally and in an improper manner. Abdul Majid Sarker vs State 55 DLR (AD) 1.
Section 491—A preventive detention is the deprivation of the liberty of a citizen, which right should not be taken away in an arbitrary manner. So this Court enjoys power to review the actions of the detaining authority under Articles 102(2)(b)(i) of the Constitution and under section 491 of the Code. Anwar Hossain vs State 55 DLR 643.
Section 491—The right to obtain a direction under section 491 of the Code in the nature of a habeas corpus is a statutory right on the grounds recognised in the section and a part of the statutory right has become a part of the fundamental right guaranteed in Part III of the Constitution. Anwar Hossain vs State 55 DLR 643.
Section 491—Whenever any authority is invested with a legal authority to make an order of detention to the prejudice of another person, such authority has the concomitant duty of acting judicially in making such an order on the basis of decision of consideration of some materials by observing the rule of natural justice. Anwar Hossain vs State 55 DLR 643.
Section 491—Detenu Nazma Akhter now aged 20 having been detained in the safe custody of “Nirapad Abason” since against her will prayer for her release from safe custody is allowed., her detention being improper and illegal. Jatio Mahila Ainjibi Samity vs Bangladesh 59 DLR 447.
Section 491-By now it well settled proposition of law that even the High Court Division can suo motu interfere when it comes to its knowledge that liberty of a citizen had been taken away by the unlawful ground. In such matter court should avoid technicality. When the State does not raise any objection in such circumstances this court can certainly interfere, when the liberty of a citizen is cutaned and his valuable right of freedom is taken away by the order of the sub- ordinate court. The High Court Division is empowered under 491 of the Code to set at liberty of the victim who is found to be detained illegally or improperly. Habib Khan vs State, 64 DLR 462
S. 491–The High Court Division is empowered under 491 of the Code to set at liberty of the victim who is found to be detained illegally or improperly. Habib Khan Vs. The State, 33 BLD (2013)-HCD-242.
S. 491-Power to issue directions of the nature of a habeas corpus
The High Court Division can suo moto interfere when it comes to its knowledge that liberty of a citizen had been taken away by the unlawful ground In the instant case, Rule was issued calling upon opposite parties to show cause as to why victim Most. Rokeya Dil Afroz Munmun is not being held in judicial Custody illegally and improperly and as to why the order passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal Case No. 578 of 2010 should not be set aside and directed to opposite parties to set the victim at liberty. In view of the facts and circumstances of the case, High Court Division held that material evidence on record shows the victim Most. Rokeya Dil Afroz Munmun is aged above 16 years and she is sui-juris and therefore is to be set at free allowing her to live with any one according to her will and choice. Habib Khan Vs. The State, 18 MLR (2013)-HCD-19
Section 491(3)—If after examining the material on the basis of which executive authority detained a person under the provisions of any law this court finds that there is no justification for detention, sub-section (3) of section 491 of the Code will not stand as a bar to declare the detention of the detenu as illegal. Pranajit Barua vs State 50 DLR 399.
Section 492—The terms of appointment of the writ petitioner was solely based on confidence and satisfaction of the Government as to service he was rendering. The moment there is absence of confidence and satisfaction, it was within the domain of the Government to terminate the appointment. Secretary, Ministry of Law, Justice & Parliamentary Affairs vs Md Borhan Uddin 56 DLR (AD) 131.
Section 492—When Government feels necessity of terminating appointment of a Public Prosecutor, questioning legality of termination of such appointment by a person claiming to be the informant of or the witness in the case can hardly; be considered legally well conceived. SM Jillur Rahman vs Bangladesh 56 DLR (AD) 127.
Sections 492 and 493—Interpretation of Statute—Public Prosecutor occupies a solemn and unique position in the Code of Criminal Procedure. Dr SM Abu Taher vs State 42 DLR 138.
Sections 492 and 493—Appointment of Public Prosecutor and authority of the PubIic. Prosecutor to conduct a case before any Court without written authority of the Government. Dr SM Abu Taher vs State 42 DLR 138.
Section 493—Public Prosecutor has authority to file an application for revival of a case, proceeding of which were stopped for failure to conclude trial within the time limit. Taheruddin vs State 47 DLR 255.
Section 493—When imputation is made directly or indirectly for removal of a public prosecutor natural justice requires that he must be given an opportunity to explain. Borhan Uddin (Md), Advocate vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 52 DLR 81.
S. 493 and ACC Act sections 17, 18, 19, 20, 28 and 33: Relationship:
This provision (of section 493) relates to the offences of the Penal Code triable by the criminal courts constituted under section 6 of the Code of Criminal Procedure, which is a general law, inasmuch as, the Commission under the Ain of 2004 has been given exclusive power to conduct cases instituted the under the Ain. This is evident from section 17, 18, 19 20, 28 and 33 of Ain, 2004 and section 10(2) of the Act of 1958...(Para-6). ACC Vs. Monjur Morshed Khan and Another, 1 Counsel (2013)-AD-33.
Section 493-The High Court Division failed to notice that provision for instructing the public prosecutor by a private lawyer contained in section 493 is not applicable to cases instituted under the Ain of 2004 in view of the fact that the Ain of 2004 is a special law providing provi- sions for investigation, inquiry, filing of cases and conducting them. Anti-Corrup- tion Commission vs Monjur Morshed Khan, 64 DLR (AD) 124
Section 494-Provision of section 494 of the Code has not been followed by the court and there was no consideration and examination of the materials on which the Government decides withdrawal of the case. Such order of withdrawal cannot be supported and maintained. Abul Quashem (Md) vs State, 65 DLR 433
Section 494—Withdrawal from prosecution of any person (before charge is framed or after charge is framed) before pronouncement of the judgment—effect of—Words “consent of the Court” occurring in section 494 CrPC—Interpretation of—Court is to see whether the public prosecutor who has a duty under section 494 CrPC to file an application for withdrawal from prosecution has in fact placed cogent and relevant materials for consideration of a court of law—The Court granting “consent” must not accord its consent as a matter of course but must apply its mind to the ground taken in the application for withdrawal by the Public Prosecutor. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259.
Section 494—Consent being one of a Court of law, the Court must consider the ground for its satisfaction for according consent and also for the higher Court to examine the propriety and legality of the order. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259.
Section 494—Trial Court’s passing of the impugned order of withdrawal as a matter of course without any application ofjudicial mind to any material on record. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259.
Section 494—The terms “consent” is a legal term and is of wider import which means “acquiesce in” or “agree to”. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259.
Section 494–In a case of revival under section 339D, the Court is not to determine anything judicially—Court not to search for Government instruction which prompted the Public Prosecutor to file application for revival. Dr SM Abu Taher vs State 42 DLR 138.
Section 494-The learned Assistant Sessions Judge having not granted the consent for withdrawal by the impugned order on consideration of any cogent ground or materials the same is not only illegal but contrary to the well established principles of criminal justice and liable to be quashed. Shamsul Alam vs State 47 DLR 476.
Section 494-The Magistrate accorded permission for withdrawal simply on the ground that the Government had instructed the Deputy Commissioner concerned for taking steps for withdrawal of the case. Such mechanical order of withdrawal is contrary to the provision of section 494 of the Code. The Magistrate is directed to proceed with the case in accordance with law. Altaf Hossain vs Kobed Ali 49 DLR 589.
Section 494-The trial Court having not accorded sanction for withdrawal of the case it cannot be said that the petitioners have acquired a vested right. Further, section 494 of the Code gives the authority only to a public prosecutor to file an application for withdrawal and, as such, the accused have no right to file an application for withdrawal. Apart from this the Tribunal after recording proper reasons have refused to accord consent for withdrawal of the case and, as such, no lawful grievance can be made on the merit as well. Abdul Khaleque vs Md Hanf 49 DLR (AD) 134.
Section 494—The offence under section 376 is not-compoundable and, as such, there is no question of withdrawal. Sorbesh Ali vs Jarina Begum 49 DLR (AD) 143.
Section 494—Withdrawal from the prosecution is subject to consent by the trial Judge and when the accused persons are still absconding the discretion ought not to have been exercised. Sreemall Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8.
Section 494-The consent mentioned in section 494 of the Code is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. Sreemati Prativa Rani Dey (tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8.
Section 494-The court is required to exercise judicially the function of according consent for withdrawal of any accused from prosecution—The consent should not be given mechanically. Loskor Md Mostan Billah vs State 56 DLR 199.
Section 494-Withdrawal from prosecution —The judgment and order of the Tribunal Judge refusing to give consent to withdraw of the accused from prosecution cannot be found fault with nor there is any error in the judgment of the High Court Division. State vs Md Amir Hamza 57 DLR (AD) 26.
Section 494-Though section 494 confers on the Public Prosecutor a wide power to withdraw from the prosecution, and the Court has j to exercise its power in relation to the facts and circumstances of the case in furtherance of cause of justice rather than as a hindrance to the object of the law. Moezuddin (Md) vs State 59 DLR 222.
Section 494-The Additional Sessions Judge consented to the withdrawal from the prosecution of the accused opposite party No. 1 merely on the ground that the Ministry of Home Affairs decided to withdraw from the prosecution. The order cannot be said to be a legal one and the samei s liable to be interfered with. Moezuddin vs State 59 DLR 222.
Section 494-Judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. The very word “consent” occurring in section 494 of the Code clearly indicates that it is not to be considered lightly on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application is based. Shamsun Nahar vs State 60 DLR 1.
Sections 494 & 439—Consent mention in section 494 of the Code is not to be given mechanically. The court is to exercise its function judicially before giving such consent which implies that the court will have to examine the materials on which the Government decides on withdrawal of a case. ‘Consent’, as used in the section, means a consent freely given by a Court. Since the act of giving consent by the Court is a judicial act, the court is entitled to ask the Public Prosecutor the reasons for his withdrawal in order to judicially come to a decision. Badar Biswas vs State 57 DLR 770.
S. 494-Provision of section 494 of the Code has not been followed by the court and there was no consideration and examination of the materials on which the Government decides withdrawal of the case. Abul Quashem (Md.) Vs. State, 65 DLR (2013)-HCD-433.
Section 497(1) proviso read with section 173-A bail should not be withheld is a measure of punishment. On consi- deration of the age of the appellant and the health condition as available with the record, we are of the view that the appellant should get the privilege of bail as per proviso to sub section (1) of section 497 of the Code. Shafik Rahman vs State, 68 DLR (AD) 372
S. 497-The law permits the Court to enlarge any child alleged to have committed a non-bailable offence on bail.
Children Act, 1974
Section 49(2)-If the Court does not grant bail, then the child shall be ordered to be detained in a remand home or place of safety.
A report published in the Daily Star on 29.09.2010 was brought to the notice of Court and a Suo Muto was issued directing the Secretary, Ministry of Home Affairs and the Inspector General of Prison to report to this Court within two weeks specifying were the 145 children were being held and by order of what authority they were being so held. In this Rule High Court Division reiterate that the learned Judges must be aware that children cannot under any circumstances be kept in prison pending trial. The children held in the prisons, whose age is below 16 years, are being held there illegality and without lawful authority and are to be removed from prison forthwith. State Vs. The Secretary, Ministry of Homes Affairs, Bangladesh Secretariat, Dhaka & Others, 18 MLR (2013)-HCD-65.
Section 497— Bail—This section enjoins upon the Court to exercise judicial discretion in the matter of granting bail for ascertaining whether the materials placed before the court by the prosecution are of such a tangible nature that if left unrebutted, they may lead to the inference of guilt of the accused. In the present case there is no other materials on record other than the FIR and mere allegations thereof. The court thus committed an error in refusing bail in this case. AKM Mosharraf Hossain vs State 44 DLR (AD) 246.
Section 497—As soon as the accused appears or brought before the Court and prays for bail the Sessions Judge should dispose of his application. If the Sessions Judge fails to dispose of the same there is no scope for allowing the accused to continue on the bail granted by the Magistrate, he is to be sent to jail custody.
We have noticed in many cases that such orders allowing the accused to continue as before were written by the bench clerks and merely intialled by the Sessions Judges and allowing the accused to remain at large for long time delaying commencement of the trials. The sooner these practices of issuing notices and/or allowing the accused to continue as before are discontinued it is better for speedy trial of the Sessions cases. Sessions Judges should stop the practice of putting initials on such important orders written by the bench clerks. Sohail Thakur vs State 51 DLR 199.
Section 497—Additional Sessions Judge is not bound by the bail granted by the Sessions Judge. If he refuses bail to an accused who was earlier granted bail by the Sessions Judge that cannot be construed as cancellation of bail granted by the Sessions Judge. Sohail Thakur vs State 51 DLR 199.
Section 497—”Save in accordance with law” as mentioned in Article 32 not only refers to criminal law but also civil law which provides for arrest and detention, namely, for recovery of decretal dues and public dues. State vs Faisal Alam Ansari 53 DLR (AD) 43.
Section 497—Section 497 of the Code of Criminal Procedure is a procedural law and the accused having alleged to have committed a substantive offence of murder his liberty is curtailed. State vs Faisal Alam Ansari 53 DLR (AD) 43.
Sections 497 & 498—Vires of the law has not been challenged in this case and therefore, we are not called upon to decide the Constitutionality of the law. Every law has a presumption of its Constitutionality. State vs Moyezuddin Sikder 60 DLR (AD) 82.
Sections 497 and 498—Bail—A person is not automatically debarred from getting bail merely because his name was mentioned in the charge-sheet. Liaqat Sharif vs State 40 DLR 506.
Section 497(1), r/w section 173 Bail- A bail should not be withheld as a measure of punishment. On consideration of the age of the appellant and the health condition as available with the record, we are of the view that the appellant should get the privilege of bail as per proviso to sub section (1) of section 497 of the Code of Criminal Procedure.
We have given our anxious consideration to the facts and circumstances of the case. Since the case is under investigation, we are not inclined to make any observation touching on the merit of the case...... Shafik Rahman -VS- State, [1 LM (AD) 490]
Section 498 In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail The petitioner has been charged with for offences punishable under sections 161/165(A) of the Penal Code which are bailable offences. In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code of Criminal Procedure does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. But it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. The judgment of the High Court Division is set-aside. Be enlarged on bail to the satisfaction of the Special Judge, Court No. 3. Dhaka pending trial of the case. Mia Nuruddin (Apu) VS State & another, [1 LM (AD) 474]
Section 498 Ad interim bail- Interfering with the administration of justice by the doctor's false reports-
These reports the trial of a sensational murder case is being delayed and thereby, they have been interfering with the administration of justice. By sending him to Ibrahim Cardiac Hospital instead of sending him to BSMMU, the doctors of the Central Jail. Hospital, who are public servants have misused their power and position for which, exemplary actions should be taken against them....... State =VS= Mahtab Uddin Ahmed Chowdhury, [1 LM (AD) 476]
Section 498- The ad interim bail granted to the accused respondent is cancelled. The Central Jail Authority is directed to send the accused Mahtab uddin Ahmed Chowdhury (Minar) to Feni District jail for facing trial in the case. This petition is disposed of with the above observations and direction......State =VS= Mahtab Uddin Ahmed Chowdhury. [1 LM (AD) 477]
Section 498- Ad-interim anticipatory bail Section 498 of the Code of Criminal Procedure for anticipatory bail before the High Court Division. After hearing the parties by the impugned order dated 22.04.2014 the High Court Division granted ad-interim anticipatory bail to the accused respondents. The Chief Judicial Magistrate, Sylhet is directed to secure appearance of the accused-respondents, namely (1) Ali Amzad, son of Abdul Mannan @ Monoi Miah of village Shirajpara, (2) Md. Nazim Uddin, son of late Ibrahim Ali of village Rarai, (3) Abdul Mannan and (4) Moinul Islam, both sons of late Junab Ali of No. 6 Sultanpur Union, all of Police Station-Jokigonj, District-Sylhet in connection with Criminal petition for leave to appeal No. 273 of 2014 filed against the order dated 22.4.2014 passed by the High Court Division in Criminal Miscellaneous Case No. 18030 of 2014 corresponding to G.R. No. 40 of 2014 arising out of Jokigonj Police Station Case No. 07 dated 10.03.2014 in the Court of Chief Judicial Magistrate, Sylhet immediately and enlarge them on bail to his own satisfaction......DC, Sylhet =VS= Md. Shahjahan, [3 LM (AD) 547]
Section 498-Bail-On consideration of the F.I.R.. 161 statements of the witnesses and also 164 statement of a co- accused, found that the FIR story that this accused-respondent Faridul Alam murdered the deceased has not been supported by the confessional statement of the co-accused wherein it was stated that another accused Raza Mia killed the deceased-granted bail to this accused- respondent. This accused-respondent has already been released from the jail custody and is on bail since few days after passing of the impugned judgment and order. The State VS Faridul Alam, [4 LM (AD) 522]
Section 498- Bail matter- There is no doubt that the power to grant bail under section 498 of the Code is given both to the High Court Division as well as the Court of Sessions. The decision reported in 10 DLR cited above has been brought to our notice, where it was held that a revision application direct to the High Court Division is not ordinarily entertainable. A different view appears in the case reported in 24 BLD. However, in the instant case, this issue of the maintainability has not been finally adjudicated by the High Court Division.
Facts and circumstances, we are of the view that the ends of justice would be best served if the High Court Division is directed to adjudicate upon the issue of maintainability while disposing of the Rule issued in respect of the bail of the accused-respondent.
The order of stay granted by the learned Judge-in-Chamber shall continue till disposal of the Rule.... State VS Begum Khaleda Zia, [6 LM (AD) 88J
Section 498- Grant or refusal of anticipatory bail- The Code of Criminal Procedure, 1898, at its initiation had no specific provision of anticipatory bail. In 1978, by the Law Reforms Ordinance provision was incorporated for direction to grant of bail to person apprehending arrest, by inserting Section 497A in the Code of Criminal Procedure.
Provision was omitted from the Code by the Code of Criminal Procedure (Amendment) Ordinance, 1982 (Ordinance No.IX of 1982). Relevant provision of the said Ordinance runs as follows:-
"2. Omission of section 497A, Act, V of 1978; In the Code of Criminal Procedure, 1898 (Act V of 1898), herein referred to as the said Code section 497A shall be omitted."
The case of the State Vs. Md. Monirul Islam @ Nirob and others reported in 16 BLC (AD) page 53. (judgment was delivered by A.B.M. Khairul Haque, C.J.) In that case it was observed,
"We have gone through the Order dated 08.06.2010 passed by the learned Judges of the High Court Division. The Order granting the ad interim anticipatory bail is absolutely mechanical and does not give any reason for giving such an exceptional relief. This kind of blanket order allowing anticipatory bail should not be passed. True it is, that it is an ad interim bail but it is still a bail. As such, the learned judges ought to be satisfied before allowing anticipatory bail, ad interim or otherwise as under:
i) The allegation is vague,
ii) No material is on record to substantiate the allegations,
iii) There is no reasonable apprehension that the witnesses may be tampered with,
iv) The apprehension of the applicant that he will be unnecessarily harassed, appears to be justified before the Court, on the materials on record,
v) Must satisfy the criteria for granting bail under section 497 of the Code,
vi) The allegations are made for collateral purpose but not for securing justice for the victim.
vii) There is a compelling circumstance for granting such bail, the case of Durnity Daman Commission and another Vs. Dr. Khandaker Mosharraf Hossain and another reported in 66DLR(AD) 92 (judgment was delivered by A.H.M. Shamsuddin Choudhury.J) has observed as under:
"A metaphorical avowal that the Magistracy/lower judiciary is controlled by the executive should not be treated as specific because Magistrates/lower court/tribunal Judges do no longer dwel in the realm governed by the executive. If allegation of bias is aired against a particular or a group of Magistrates/Judges, cause of suspicion must be specifically spelt out. The Judges concerned, shall give reasons for their satisfaction on this unraveling point
(b) Political threshold of the petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application.
(c) Non-bailability of the offence cited in the FIR cannot be a reason for the High Court Division's intervention for even the Magistrates/lower court/tribunal Judges are competent enough to enlarge on bail a person accused of non-bailable offences in deserving cases.
(d) Effect of the accused's freedom on the investigation process must not be allowed to float on obfuscation.
(f) The High Court Division must scrutinize the text in the FIR with expected diligence and shall ordinarily be indisposed to grant anticipatory bail where the allegations are of heinous nature, keeping in mind the ordains figured at paragraph 19 of the case reported in 51DLR(AD), 242. Claim that the allegations are cooked up shall also not be adjudged at that of point if the FIR or the complaint petition, as the case is, prima facie, discloses an offence. Whether the allegations are framed or genuine can only be determined through investigation and sifting of evidence.
g) Interest of the victim in particular and the society at large must be taken into account in weighing respective rights.
(h) If satisfied in all respect, the High Court Division shall dispose of the application instantaneously by enlarging the accused a limited bail, not normally exceeding four weeks. without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its own legal discretion without reference to the High Court Division's anticipatory bail order. Anticipatory bails shall not survive post charge-sheet stage."
The case of State Vs. Mirza Abbas and others reported in 67 DLR (AD)182, this Division again observed,
"Such discretion has to be exercised with due care and circumspection depending on circumstances justifying its exercise.No blanket order of bail should be passed. Such power of the High Court Division is not unguided or uncontrolled and should be exercised in exceptional case only. Court must apply its own mind to the question and decide whether a case has been made out for granting such relief. Court must not only view the rights of the accused but also the rights of the victims of the crime and the society at large while considering the prayers. An overgenerous infusion of constrains and conditions are not available in the guidelines indicated by this Division. The case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others reported in (2011) 1 SCC 694, Indian Supreme Court has observed that,
"The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant of flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The Courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors. namely, no prejudice should be cause to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
Guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. No attempt should be made to provide right and inflexible guidelines in this respect because all circumstances and situations of future can not be clearly visualised for the grant or refusal of anticipatory bail. Few principles for grant of anticipatory bail can be summarised as follows:
(i) The F.I.R. lodged against the accused needs to be thoroughly and carefully examined;
(ii) The gravity of the allegation and the exact role of the accused must be properly comprehended; (iii) The danger of the accused absconding if anticipatory bail is granted;
(iv) The character, behaviour, means, position and standing of the accused;
(v) Whether accusation has been made only with the object of injuring or humiliating the applicant by arresting him. Because it is to be remembered that a worst agony, humiliation and disgrace is attached to arrest. Arrest leads to many consequences not only for the accused but for his entire family and at the same time for the entire community;
(vi) A balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and thorough investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(vii) The anticipatory bail being an extra ordinary privilege, should be granted only in exceptional cases. Such extraordinary judicial discretion conferred upon the Higher Court has to be properly exercised after proper application of mind to decide whether it is a fit case for granting anticipatory bail not according to whim, caprice or fancy:
(viii) A condition must be imposed that the applicant shall not make any inducement or threat to the witnesses for tampering the evidence of the occurrence;
(ix) The apprehension that the accused is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency cannot be considered to be imaginary and the court ought to have considered that aspect seriously before granting anticipatory bail.
(x) In the cases involve grave offence like murder, dacoity, robbery, rape etc. where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims the accused should never be enlarged on anticipatory bail. Such discretion should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise.
(xi) It is to be borne in mind about the legislative intention for the purpose of granting anticipatory bail because legislature has omitted the provision of Section 497A from the Code.
(xii) It would be improper exercise of such extraordinary judicial discretion if an accused is enlarged on anticipatory for a indefinite period which may cause interruption on the way of holding thorough and smooth investigation of the offence committed.
(xiii) The Court must be extremely cautious since such bail to some extent intrudes in the sphere of investigation of crime.
(xiv) While enlarging an accused on anticipatory bail, the Court must direct the applicant to co-operate with the investigating officer in every steps of holding proper investigation if the same is needed.
(xv) The anticipatory bail granted by the Court should ordinary be continued not more than 8(eight)weeks and shall not continue after submission of charge sheet, and the same must be in connection with non-bailable offence.
(xvi) The Court granting anticipatory bail will be at liberty to cancel the bail if a case for cancellation of bail is otherwise made out by the State or complainant.
The indicatives of this Division given in the case of State V. Abdul Wahab Shah Chowdhury that "such extraordinary remedy, and exception ion to the general law of bail should be granted only in extra- ordinary and exceptional circumstances upon a proper and intelligent exercise of discretion" should be followed strictly. ...The State -VS- Morshed Hasan Khan(Professor Dr.), [7 LM (AD) 292]
Section 498- Without surrendering before the trial court The High Court Division issued Rule and granted ad interim bail It appears that the respondent was neither in custody nor appeared in person when his revisional application was moved. Clearly the High Court Division ought not to have considered his petition as he was undoubtedly a fugitive from justice. Hence, the question of issuing any Rule did not arise.
We are of the view that the respondent was a fugitive from justice and still remains so in spite of the fact that this Division issued directions to secure his arrest, he remains still at large. Until his surrender, no court of law can give him any protection or entertain any application by him.
This appeal is, allowed and the impugned Order of the High Court Division in Criminal Revision No. 227 of 2003 including the issuance of Rule, granting of ad interim bail and staying further proceedings of Metropolitan Special Case No. 2 of 2002 which arose out of Ramna Police Station Case No. 70 dated 27.03.2001 now pending in the Court of Metropolitan Sessions Judge and Special Judge, Dhaka is hereby, set aside. The Metropolitan Sessions Judge and Senior Special Judge, Dhaka is directed to proceed with the trial of the respondent Dr. Fazlur Rahman in accordance with law.... The State VS Dr. Fazlur Rahman, [9 LM (AD) 113)
Section 498- Bail-Petitioner Begum Khaleda Zia was convicted under section 5(2) of the Prevention of Corruption Act, 1947 by the learned Special Judge, Court No.5, Dhaka in Special Case No.18 of 2017 arising out of Tejgaon Police Station Case No.15 dated 8-8-2011. The trial Court sentenced her to suffer rigorous imprisonment for a period of 7 (seven) years and to pay fine of Taka 10,00,000 (ten lac), in default, to suffer simple imprisonment for a further period of 6 (six) months more. Against the said judgment and order of conviction and sentence, she preferred aforesaid criminal appeal in the High Court Division and, thereafter, filed an application for bail in that appeal. The High Court Division, by impugned order, rejected the said prayer for bail holding that taking into account the gravity of the offence allegedly committed by a person no less than the ex-Prime Minister of the Country, the trial Court has inflicted the highest sentence available to the relevant law.
That the petitioner prayed for bail in the High Court Division on the ground, inter alia, that she has been suffering from serious health complications but the High Court Division totally failed to consider the said ground though the same was specifically pointed out before the Court for consideration at the time of hearing the application for bail.
Bangabandhu Sheikh Mujib Medical University is a dependable medical institution of the country for providing proper treatment for a patient. The Medical Board did not suggest that it is necessary to send the petitioner abroad or any other specialized hospital in Bangladesh for her better treatment. Nowhere in the Criminal Petition for leave to appeal it has been stated that the petitioner has expressed her desire or eagerness to take better treatment abroad stating that the treatment provided by the BSMMU authority is not adequate and dependable. 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.
Considering the aforesaid facts and circumstances, the petition is dismissed with observation that 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. ...Begum Khaleda Zia =VS= State, [9 LM (AD) 533]
Section 498- Bail Modified judgment of the High Court Division granting bail Direct the Jailors, Dhaka Central Jail and Kashempur Central Jail to allow the accused -respondents to hold meeting of the companies if necessary and to execute any document or documents, resolutions, deeds etc. as may be necessary for the purpose of selling 35 lac matured trees owned by Destiny Tree Plantation Limited. We also direct the Jail Authorities to allow Dr Md Shamsul Huq Bhuiyan, MP Chandpur-4 Constituency to meet the accused in Jail as and when necessary for consultation and obtaining necessary Signatures and instructions from them for the purpose of selling the trees. We also direct the Jail Authority to allow all sort of co-operation as may be necessary for the purpose of completing the transaction for sale of the trees and receiving sale proceeds for onward transmission to the Chairman, Durnity Daman Commission for distribution to the affected persons on the basis of list to be submitted by Dr Md. Shamsul Huq Bhuiyan, MP. Durnity Daman Commission =VS= Mohammad Hossain, [3 LM (AD) 549]
S. 498-Guideline for granting Anticipatory Bail-The Order granting anticipatory bail is absolutely mechanical and does not give any reason for giving such an exceptional relief. This kind of blanket order allowing anticipatory bail should not be passed. This being an ad interim order, Judges ought to be satisfied before allowing anticipatory bail; (i) the allegation is vague, (ii) no material is on record to substantiate the allegations, (iii) no reasonable apprehension that the witnesses may be tempered with, (iv) the apprehension of the applicant that he will be unnecessarily harassed, appears to be justified before the Court, on the materials on record, (v) must satisfy the criteria for granting bail under section 497 of the Code. (vi) The allegations are made for collateral purpose but not for securing justice for the victim, (vii) there is a compelling circumstance for granting such bail. DC, Bhola Vs. Md. Monirul Islam and other, 1 Counsel (2013)-AD-13.
S. 498-Allegation under Table 9(Kha) of Section 19(1) of the Narcotics Control Act, 1990
In the instant case it appears that the petitioner was alleged to be arrested along with 600 pieces of Yaba Tablet on 8.1.2011 and till then detained into custody and by the time he is languishing in the jail custody for more than 10 months. As per certificate of analysis given by the Department of Narcotics Control Central Chemical Laboratory, dated 16.4.2012 each yaba tablet contents 5.1 mg narcotics (melt amphetamine) 600 pieces yaba Tablet contains less than 5 grams of narcotics for which law prescribed minimum sentence of six months imprisonment. Considering the tenure of custody we are inclined to enlarge him on bail. Tabarak Hossain Vs. The State, 21 BLT (2013)-HCD-101.
S. 498-If the bail is granted to one co-accused, the other co-accused whose case stands on the same footing is entitled to get bail. Advocate Ruhul Kabir Rizvi Vs. State, 65 DLR (2013)-HCD-541.
S. 498 of CrPC: Ad interim bail should not be granted for long period of time:
It appears that the charge-sheet has not yet been submitted by the police and the accused-respondents are languishing in custody for more than 1 (one) years, as such, we do not find any justification for interference with the discretion exercised by the High Court Division in granting ad interim bail. However, the ad interim bail ought not to have been granted for an indefinite period...(Para-4). State Vs. Nazmul Hasan (Criminal), I Counsel (2013)-AD-48.
Ss. 498 and 561A-After submission of the police report, there is no scope for anticipatory bail or pre-arrest bail. Ali Haider Chowdhury Vs. State, 65 DLR (2013)-HCD-116.
S. 498-In dacoity cases when bail matters are taken up, apart from the question of law and order, emerging jurisprudence of victim's right immediately crosses the judicial mind. General considerations and principles of bail, therefore, do have no straight-jacket application in such cases, far less in matters of ad interim bail. Aslam @ Billal Vs. State, 18 BLC (2013)-HCD-30.
S. 498-Undue delay in holding trial is a valid ground for granting bail and there is no material to discriminate the case of petitioner from the co-accused, who has been enlarged on bail by the Court below. Accordingly, the petitioner was enlarged on bail. Md. Shahidul Islam @ Shahidul Vs. The State, 2 LNJ (2013)-HCD-197.
Section 498—Order for conditional bail is illegal and not proper. AHM Siddique vs State 45 DLR (AD) 8.
It appears that the prosecution opposed
prayer for bail and as such we are of the view that the High Court Division
ought to have exercised the jurisdiction after being satisfied that there are
reasonable grounds for believing that the accused respondent is not guilty of
the offence. The State vs Muhibur Rahman Manik (Amirul Kabir Chowdhury J)
(Criminal) 3ADC 498
Section 498—Considering the statements under section 161 of the Code of Criminal Procedure wherein no specific overt act involving the appellants with the killing of the victim is found the appellants are granted bail and if the trial starts the Sessions Judge will be free to take them into custody during trial. Abdul Matin vs State 44 DLR (AD) 8.
Section 498— Bail—It is not the prima facie case against the accused but reasonable grounds’ for believing that he has been guilty which prohibits granting of bail. The onus is on the prosecution to disclose those reasonable grounds. Court has to examine the data available in the case to find out whether reasonable grounds exist to connect the accused with the crime alleged. Shaikh Shahidul Islam vs State 44 DLR (AD) 192.
Section 498— Bail—Refusal of bail in a case of murder in which the accused was earlier exempted from trial—In view of Sessions Judge’s findings that non-submission of charge-sheet against the petitioner earlier was without valid reason, that he is a powerful man in the locality and there is a possibility of his influencing the witnesses has substance—there is no compelling reason to enlarge the petitioner on bail. ASM Abdur Rob vs State 44 DLR 205.
Section 498—Sentence for one year—The Court ought to have exercised discretion in granting bail to the appellants in view of the short sentence of imprisonment. Saimuddin vs State 43 DLR (AD) 151.
Section 498—Bail in a case where the sentence is of short duration—In the present case the – sentence is of two years and the disposal of the appeal in question normally takes time. In that circumstances the High Court Division ought to have exercised judicial discretion in the matter of granting bail to the appellants. The judicial discretion having not been properly exercised in the facts of the case the order is set aside and the appeal allowed. Dhanu Mia vs State 43 DLR (AD) 119.
Section 498—High Court Division criminal revision cancelled the appellant’s when there was no new material before it and no allegation of tampering with the evidence. Co-accused against whom cognizance of a murder case has already been taken is already on bail. High Court Division did not exercise its judicial discretion properly in cancelling the appellant’s bail—Appellants to remain on bail already granted by Upazila Magistrate. Bakul Howlader vs State 43 DLR (AD) 14.
Section 498— Bail—Incriminating facts disclosed in the FIR after due inquiry by the inspecting team are reasonable grounds for believing that the petitioner is guilty of criminal breach of trust. The Session Judge has rightly rejected the petition for bail. Mustafizur Rahman vs State 45 DLR 227.
Section 498—Bail—When there is hardly any chance of abscondance of the appellant in the peculiar circumstances, the Court has found that he is entitled to bail—Appeal allowed. We need not consider the appellant’s contentions with regard to the order of conviction. In the peculiar circumstances of the case we think the appeallant is entitled to bail particularly where there is hardly any chance of abscondance. The respondent found it difficult to oppose the appellant’s prayer. SM Shajahan Ali Tara vs State 41 DLR (AD) 112.
Section 498—Anticipatory bail- Circumstances when such bail was granted by the High Court Division. The police went to the residence of the petitioner to arrest him on the basis of a case started upon a newspaper report. He was a candidate for the National Assembly election. His political rivals and enemies were bent upon defeating him by putting him in confinement through the help of the police. In such circumstances, the prayer for anticipatory bail was granted. Zulfiqur Ali Bhutto vs State 43 DLR 312.
Section 498-Bail—there was a free fight between the parties; the accused are in jail for 9 months, the case has not been sent to proper court for trial as yet and both sides have case against each other on the self-same matter—Hence it will not be unreasonable to enlarge the petitioners on bail till the trial starts when the trial Court will see whether they should continue on the same bail. Shahidullah vs State 42 DLR 394.
Section 498-There is no evidentiary value of confessional statement of the co-accused if not corroborated by the evidence. Serious view is also taken for violation of the direction not to arrest or harass the petitioner by a Division Bench of this Court in Writ Petition No. 3073 of 2006 for two months but the petitioner has been arrested before expiry of that period. The opposite party must explain it. Considering the above facts, the petitioner is enlarged on bail. Badrud Doza vs State 58 DLR 529.
Sections 498 and 517—An application for disposal of seized articles can be filed under section 517 of the Code before the proper Court after conclusion of trial. The High Court Division acted illegally and without jurisdiction in releasing the seized goods at the time of issuance of Rule in an application under section 498 of the Code. State vs Abdur Rahim 58 DLR (AD) 65.
Section 498—Successive bail petition, propriety of—The Judges were not right in taking the view that once a petition for bail is rejected no further application can be made and the remedy lies only in an appeal. It is also not right to say than an application for bail could not be filed before the Vacation Judge and that he had no jurisdiction to grant interim bail (when he was himself a party to the rejection of bail for the same accused earlier by the Division Bench). At the most, it may be said that it was indiscreet on the part of the Vacation Judge to grant bail in the facts of the case.
In the application for bail before the Vacation Bench, it was not mentioned that prayers for bail had been refused earlier. For this suppression of fact alone the ad interim bail could have been cancelled. MA Wahab vs State 42 DLR (AD) 223.
Section 498—Bail matter—High Court Division admitted a criminal appeal but rejected the prayer for bail pending disposal of the appeal—Ad interim bail granted by tle Appellate Division at leave stage for two months cannot be allowed to continue indefinitely—ad-interim bail extended for six months more and meanwhile parties are directed to make sincere effoils for disposal of the appeals—on expiry of the extended period, prayer for bail is to be moved before the High Court Division. Azizul Hoq vs State 42 DLR (AD) 284.
Section 498—The law permits granting of bail even in a case where there are such reasonable ground for refusing bail, in the case of any woman or any sick or infirm person.
However, the respondent has not been granted bail upon these considerations but upon the view that there are no reasonable grounds for believing that she has been guilty of the offence alleged. The learned Attorney-General could not refer to any principle which has been allegedly violated by the High Court Division nor to any fact which has either been ignored or wrongly relied upon. State vs Jobaida Rashid 49 DLR (AD) 119.
Section 498-An earlier application for bail having been rejected on merits discarding the ground taken therein similar application subsequently filed without any new ground cannot be considered. Subsequent application must contain the information clearly about the earlier application(s) together with prominent heading such as second application or other application and so on and further that such application must be filed before the Bench which had rejected the earlier prayer(s), if of course that Bench is not in the meantime dissolved. MA Malik vs State 48 DLR 18.
Section 498—The accused-petitioner is enlarged on anticipatory bail as it appears that the informant’s father is an influential man having easy access to the local executive authorities and in the facts of the case the apprehension of harassment cannot be ruled out. MA Malik vs State 48 DLR 18.
Section 498—Anticipatory bail—As the petitioner is not named in the FIR and the police were after him, they are directed not to arrest him, and if arrested, he should be enlarged on bail immediately. He is directed to surrender then to the Magistrate and pray for regular bail. Abdul Wadud vs State 48 DLR 599.
Section 498—Bail in pending trial—The Magistrate ordered for further investigation and the investigation is still pending. It is not certain j when the police will submit report after further investigation and when the case may be sent for trial. Considering the facts and circumstances the petitioner may be enlarged on bail. Shahed Reza Shamim vs State 49 DLR 116.
Section 498-Restrictive order imposed by the District Magistrate upon liberty of movement of the petitioner enlarged by the High Court Division on anticipatory bail is stayed and the Magistrate’s conduct is deprecated. Ahad Miah vs State 49 DLR 200.
Section 498-The petitioner, being a lady in custody for a considerable period of time and there being absence of materials that her husband holding illegal fire-arms in their residence, has absconded, she is enlarged on bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 189.
Section 498-Mere naming the accused in the charge-sheet without any prima facie material and the mere fact that in the occurrence the Head of the State with his family has been murdered and that this is a sensational case cannot be a ground for refusal of bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 229.
Section 498— Ordinarily when the petition is not pressed by the Advocate for the petitioner the same is rejected without expressing opinion. Since a Division Bench has already expressed opinion on the application and the judges differed in their opinion the difference should be resolved. There is no scope for not pressing the petition after it had been pressed and opinion expressed by the Division Bench. Belayet Hossain Sharif vs State 50 DLR 242.
Section 498—Merely because a person is respectable, influential or highly placed in the society by reason of his being rich or educated or politically connected or otherwise holding important post or office he cannot avoid the due course of the law to appear before the courts below and use High Court Division as a substitute of the subordinate courts. Belayet Hossain Sharif vs State 50 DLR 242.
Section 498—Power of granting anticipatory bail is very sparingly used by this Court to save a citizen from unnecessary harassment and humiliation in the hands of police on flimsy ground or with ulterior motive or out of political design. This power cannot be exercised in each and every case as a substitute to the exercise of such power by the court below. A person cannot be enlarged on anticipatory bail how high so ever he may be unless conditions for granting such bail are satisfied. Belayet Hossain Sharif vs State 50 DLR 242.
Section 498-Since the petitioner has meanwhile been enlarged on bail by the trial Court, the merit of the case is not touched while deciding the question of entitlement to anticipatory bail. Belayet Hossain Sharif vs State 50 DLR 242.
Section 498-In view of long detention of the accused petitioner for about two years without knowing when the trial of the case can be concluded and in view of the fact that some of the accused persons standing on the same footing have already been granted bail, the accused- petitioner should be granted bail. MA Sattar vs State 50 DLR 258.
Section 498-Anticipatory Bail—the offence with which the petitioner has been accused of being punishable with death or imprisonment for life anticipatory bail cannot be granted though he is an elected Chairman. Abdur Rahman Molla vs State 50 DLR 401.
Section 498— The petitioners of the respective Rule could not satisfy with cogent reason and materials the cause for not surrendering before the Court below. Orders of ad interim anticipatory bail granted by this Court are recalled and the petitioners are directed to surrender to their respective bail bond. Dr Mominur Rahman alias Zinna vs State 50 DLR 577.
Section 498—Anticipatory bail—The spouses are at loggerheads both having taken recourse to court. There is possibility of the respondent husband being harassed. It is, therefore, difficult to hold that the High Court Division has granted him bail unreasonably or unfairly. State vs MA Malik 47 DLR (AD) 33.
Section 498—Anticipatory bail—by the High Court Division directly is not granted as a matter of course except in exceptional cases such as physical inability to appear before the court of first instance, fear and lack of personal safety, lack of confidence and like circumstances (ref. Sadeq Ali’s case, 18 DLR (SC) 393.
In the instant case we find the proceeding to be at an initial stage. No charge has yet been framed and two of the petitioners are ladies and most of the accused are quite elderly citizens of the country and some of them are suffering from heart trouble. These facts along with the order attending facts and circumstances of his peculiar case, unique in nature in our history, would call for an exercise of the power of this Court granting bail and more so when the matter of bail on merits has been examined by this Court in extension before the lawyers of both sides. Jahanara Imam vs State 46 DLR 315.
Section 498—If the trial is not concluded within a reasonable time, the petitioner can pray for bail in the appropriate court. Emran Hossain vs State 1 DLR (AD) 137.
Section 498—ln an appeal against a short sentence bail should be ordinarily granted in exercise of a proper discretion because usually it takes time to hear the appeal.
The learned Judge would be justified in refusing bail if he could ensure the disposal of the appeal within a reasonable time, i.e., within 3-6 months, otherwise the refusal of bail will be manifestly unjust. It is difficult to appreciate why not even stay of realisation of fine was granted which is usually allowed. It seems that there has not been a sufficient realization of the purpose of appeal, nor of the guidance given by this Division in the cited case. Alaluddin vs State 51 DLR (AD) 162.
Section 498—The basic conception of the word “bail” is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so.
An accused person is said, at common law, to be admitted to bail, when he is released from the, custody of the officers of the Court and is entrusted to the custody of persons known as his sureties who are bound to produce him to answer at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted.
Per Latfur Rahman J (agreeing): By anticipatory bail we mean bail in anticipation of arrest. The distinction is that bail is granted after arrest and anticipatory bail is granted in anticipation of arrest, and therefore, effective at the very moment of arrest. In other words, unlike a post-arrest order of bail, it is a pre-arrest order of release. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.
Section 498—On principle it is true that in case of concurrent jurisdiction the lower Court should be moved first but it is not a hidebound rule.
Per Latfur Rahman J (agreeing): Section 498 of the Code speaks of the High Court Division or Court of Sessions and, as such, I hold that an accused person may seek bail in either of the Courts at his option. I do not find any justification in curtailing the power of the superior Court, keeping the same to the Court subordinate to it. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.
Section 498—If the power under section 498 is held to be subject to section 497 then the High Court Division will be precluded from considering the malafide nature of a proceeding in a particular case merely because there is a prima facie allegation of an offence punishable with death or imprisonment for life.
A prayer for pre-arrest bail should be considered without any feeling of fetter of section 497 at the first instance but the general principle as laid down in that section should always be there at the back of the mind of the Court, particularly the nature of allegation made against the accused in a particular case involving him with the offence. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.
Section 498—Pre-arrest bail is an exception to the general law and the Court will always bear in mind the caution of SA Rahman J in the case of Muhammad Ayub reported in 19 DLR (SC) 38.
Generally speaking the main circumstances as would entitle an order for extraordinary remedy of pre-arrest bail is the perception of the Court upon the facts and materials disclosed by the petitioner before it that the criminal proceeding which is being or has been launched against him is being or has been taken with an ulterior motive, political or otherwise, for harassing the accused and not for securing justice, in a particular case. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.
Section 498—Prayer for anticipatory bail may also be considered may occur if it is proved that on account of public commotion or other circumstances it is not possible for the petitioner to appear before the lower Court. State vs Abdul Wahab Shah Chowdhuty 51 DLR (AD) 242.
Section 498—It may even be possible to successfully make a prayer for bail on merit in the facts of a particular case but that alone can never be a ground for granting a prayer for pre-arrest bail.
This prayer, extraordinary as it is, can only be considered, as already stated, when it appears to the Court that the purpose of the alleged proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by abusing the process of law, such as, harassment, humiliation, etc. of the accused which cannot be permitted. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.
Section 498—It is the duty of the accused to surrender before the Court in which his case is pending. He cannot continue on anticipatory bail even after submission of the charge-sheet and taking of cognizance of offence by the Court. Probir Kumar Chowdhury vs State 51 DLR 42.
Section 498—It is for the trial Court to piece together all the fragments of the evidence. Reading the statements under sections 164 and 161 CrPC there appears now reasonable grounds that the petitioner may be parties to a criminal conspiracy for killing the 4 leaders in jail. So the prayer for bail is rejected. KM Obaidur Rahman vs State 51 DLR 51.
Section 498—Ordinarily when warrant of arrest is issued against a person or a person is wanted in connection with a non-bailable offence of serious nature he is not entitled to get anticipatory bail. In this view, the ad interim anticipatory bail is recalled and the petitioners are directed to surrender to the Court below. Mir Shahidul Islam vs State 51 DLR 506.
Section 498—When on the face of it prosecution case appears to be absurd and preposterous it would be unjust to refuse bail however serious and grave the allegation may be, because in a free and civil society liberty of a citizen can neither be circumscribed nor made subservient to of capricious enforcers of law, more so, when incarceration without trial stretches over a year and a half, without any date for hearing in sight. Kawsar Alam Khan vs State 52 DLR 298.
Section 498—A Member of Parliament being enlarged on bail cannot avoid appearance before the trial Court simply on the plea that the Parliament is in session. KM Obaidur Rahman vs State 55 DLR (AD) 6.
Section 498—The question of granting or refusing bail depends upon the particular circumstances of each case and the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.
Section 498—The grant of bail is the discretion of the court and the Court could consider the exercise of discretion if it is satisfied in the facts and circumstances of the case that the trial cannot be concluded within the specified time. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.
Section 498―The petitioner has been made an accused for alleged acts of forgery in creating affidavit and kabinnama and the subject matter of Criminal Proceeding has become, also, a subject matter of a suit in the Second Court of Assistant Judge, Chittagong and the petitioner and informant are a loggerheads. Exceptional and special circumstances appear to have existed for granting anticipatory bail to the petitioner. Patwary Rafiquddin Haider vs State 55 DLR 241.
Section 498―Non-compliance of direction of High Court Division by the Court below as to conclusion of trial of the case within 4 months will not create any right to the accused Harun to be entitled to get bail disregarding the allegation of overt act against him. Court of law must act upon materials on record to decide the question of granting or non granting of bail. Harun-or-Rashid vs State 56 DLR 318.
Section 498―The apprehension that there is possibility on the part of the petitioner to interfere with the process of investigation and of tampering with the evidence, has got no basis at all. The attending circumstances shown the petitioner deserve bail. Dr Qazi Faruque Ahmed vs State represented by the Deputy Commissioner 56 DLR 600.
Section 498―The deceased was killed in her husband’s house and naturally he was then her best custodian and he is supposed to know the cause of her death, but the story narrated in the UD Case which was ended in the final report creates presumption about the implication of the husband in the occurrence. Moreover, there is no cause to consider the prayer for his bail in the light of the decision referred which was given in an appeal. Azam Reza vs State 57 DLR 36.
Section 498―As the petitioner has no f to surrender at this stage and police is aftei the accused-petitioner is enlarged on a bail for limited period till submission of police report. Shakawat Hassan vs State 57 DLR 244.
Section 498—When accused, is in custody he is not entitled to anticipatory bail. A Wadud Member vs State 59 DLR 586.
Section 498—Since the accused-petitioners did not appear before the Magistrate nor took any step for recalling the warrant of his arrest, it is apparent that they are fugitives from justice having no protection of law. AKM Iflekhar Ahmed vs State 59 DLR 646.
Section 498—In view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence if the trial is not concluded in the specified time the co-accused has been enlarged on bail, this Court is inclined to enlarge the appellant on bail. Abul Kalam vs State 60 DLR 254.
Section 498―From the foregoing discussions and in view of the facts and circumstances of the case, we are led to hold that at this stage, the accused-petitioner cannot make any application for bail, far less anticipatory bail, under section 498 of the Code of Criminal Procedure, 1898. Accordingly, the instant application for anticipatory bail is summarily turned down. Ali Ahsan Mujahid vs State 60 DLR 359.
Section 498—It appears that although charge-sheet has been submitted but charge has not yet been framed and, as such, completion of the trial is not likely to be soon. Furthermore, considering all the above matters we are inclined to grant bail to the accused-appellant. Ziad Ali Gazi vs State 61 DLR 807.
Section 498—On reference to the record of Criminal Miscellaneous Case No. 13454 of 2008 we find that ad interim bail was granted to the victim petitioner treating her as accused-petitioner. This may be due to mistaken submission of her learned Advocate or due to inadvertence of the Court. Indeed, the victim was not an accused in the case. Question of her release or custody was not a matter for determination under section 498 of the Code. Not being an accused charged with commission of any offence she had no scope to seek bail under the provision of sections 496, 497 and 498. We have reason to find that application preferred by the victim under section 498 of the Code seeking bail was quite incompetent. It is difficult to maintain the order of ad interim bail in her favour either through inadvertence of the Court or mistaken submission of her Advocate. Aysha Begum vs State 61 DLR 493.
Section 498—Anticipatory bail —Not to harass/arrest. If a fugitive surrenders before the High Court Division and prays for bail, it may either grant bail under section 498 of the Code, on the principle discussed or is obliged to hand him over to the police, to be dealt with in accordance with law. But directing the police not to arrest a fugitive, which the police is duty bound to do under the law, is an order beyond the ambit of the Code of Criminal Procedure or any other law, known to us. This kind of order may impede the investigation and ultimately frustrate the administration of criminal justice. State vs Zakaria Pintu 62 DLR (AD) 420.
Section 498―The Court below has seen the CD and became sure about the transaction. The matter is still under investigation and if the mighty accused is granted bail the investigation of the case will be hampered as he holds very powerful position in the Anti-Corruption Commission. SM Sabbir Hasan vs State 63 DLR 368.
Sections 498 and 499—The Tribunal has no power to impose a condition at all when it grants bail to an accused—Even the Tribunal is not competent to accept any offer of a condition by the accused in grantingbail beyond the pr-ovision of law. Rafiqul Islam vs State 58 DLR 244.
Section 498-It has come to our notice that some of the benches of the High Court Division are exercising the power of granting anticipatory bail indiscriminately without adherence to law. In doing so the High Court Division travelled beyond its periphery. Such act of the High Court Division is deprecated seriously. Discretion the High Court Division exercised in granting anticipatory bail cannot be termed fair and intending to secure justice. Rather, such orders were capricious causing adverse impact upon the criminal justice system. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60
Section 498-Discretion vested in the High Court Division in dealing with the prayer seeking anticipatory bail must be exercised with due care and prudence depending upon the nature of accusations and averments. The High Court Division pitiably failed to go on in light of the guidelines and principles propounded by the highest court i.e. the Appellate Division. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60
Section 498- The latitude given to the High Court Division while exercising the discretionary power of granting anticipatory bail must be guided by the principles laid down by the Appellate Division. But the High Court Division passed the orders overstepping its limits. Such derogatory trend of the High Court Division shall leave an adverse impression upon the criminal to get an upper hand through the hands of law. We also direct the High Court Division to refrain from unscrupulous exercise of the power of granting anticipatory bail. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60
Section 498-Granting of bail is undoubtedly a discretion of the Court. But, that discretion has to be exercised upon a sound footing of laws governing the gamut of a particular case. It has to be remembered that, it is not the prima facie case against the accused, but, the 'reasonable grounds' for believing that, he has been guilty is the concept of granting bail that gets paramount consideration. The Court has to examine the data available to connect whether reasonable grounds exist for considering, as such, in a particular case (for granting or non-granting bail) State vs AHM Fuad (Criminal) 75 DLR (AD) 241
Section 498-Anticipatory Bail- After the implementation of the Masdar Hussain judgment [52 DLR (AD) 82), transfer, promotion of the Magistrates are in the hands of the High Court Division, and as such bail petitioners' political assimilation cannot ipso facto ignite any apprehension of unfairness or impropriety. Durnity Daman Commission vs Dr. Khandaker Mosharraf Hossain, 66 DLR (AD) 92
Section 498-Anticipatory Bail Criteria-The following criteria shall follow while disposing of anticipatory bail applications.
To open the jurisdictional door they shall satisfy themselves that reasons for apprehension have specifically. explicitly, plausibly, credibly and with sufficient clarity been assigned, instead of relying on any generalised pretension. That must be treated as the precursor.
Political threshold of the petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application.
Non-bailability of the offence cited in the FIR cannot be a reason for the High Court Division's intervention for even the Magistrates/lower court/ tribunal Judges are competent enough to enlarge on bail a person accused of non-bailable offences in deserving cases.
Effect of the accused's freedom on the investigation process must not be allowed to float on obfuscation.
The High Court Division must scrutinise the text in the FIR with expected diligence and shall ordinarily be indisposed to grant anticipatory bail where the allegations are of heinous nature, keeping in mind the ordains figured at paragraph 19 of the case reported in 51 DLR (AD) 242.
Interest of the victim in particular and the society at large must be taken into account in weighing respective rights.
If satisfied in all respects, the High Court Division shall dispose of the application instantaneously by enlarging the accused on a limited bail, not normally exceeding four weeks, without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its own legal discretion without reference to the High Court Division's anti cipatory bail order. Durnity Daman Commission vs Dr. Khandaker Moshar raf Hossain, 66 DLR (AD) 92
Section 498-If the bail is granted to one co-accused, the other co-accused whose case stands on the same footing is entitled to get bail. Advocate Ruhul Kabir Rizvi vs State, 65 DLR 541
Section 498-Anticipatory Bail/Pre- arrest Bail-It is an extra-ordinary remedy and an exception to the general rule of bail which can be granted only in extra- ordinary and exceptional circumstances upon a proper and intelligent exercise of discretion. The High Court Division cannot exercise its discretion whimsically at its suit will. The High Court Division has not properly exercised its discretion in granting the accused-respondent on anticipatory bail. ACC vs Jesmin Islam, 67 DLR (AD) 1
Section 498-Anticipatory Bail- From the orders of bail of all the cases it appears that the High Court Division has failed to follow the guidelines indicated by this Division while disposing the applications for bail. Orders of anticipatory bail have been passed which cannot be considered as careful and proper exercise of extra-ordinary judicial discretion. State vs Mirza Abbas, 67 DLR (AD) 182
Section 498-It is settled principle of law and long standing practice that prayer for bail can be agitated at any time on different cause of action. MM Shabbir Hasan vs State, 64 DLR 465
Section 498-Where there is no prima facie case against the accused and the materials on record is of doubtful nature, the accused is entitled to be enlarged on bail. Bela va State, 64 DLR 85
Section 498-In the name of cont- inuous hartal the recent movement was raised to the scale of violent agitation involving targeted killing of innocent civilians by indiscriminate and massive explosions of petrol bombs and hand bombs, fire crackers and cocktails, arson, widespread rampage and vandalism; unprecedented and outrageous attack on the members of law enforcing agencies creating panic in the mind of general public which by any standard are organized criminal acts far exceeding the generally acceptable degree of enforcement of hartal in our country. (PER MD RUHUL QUDDUS J AGREEING WITH GOBINDA CHANDRA TAGORE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483
Section 498-The law laid down in the case of Abdul Wahab Shah Chowdhury has been further interpreted in the subsequent cases and the scope of granting anticipatory bail by the High Court Division has been increasingly restricted, though not altogether prohibited. Now the restrictive rules for all practical purpose have narrowed down the scope of anticipatory bail so much so that discretion of the Court is limited, to rare cases having apparent indication of falsehood initiated only to harass and humiliate the accused or to serve some other ulterior purpose. (PER MD RUHUL, QUDDUS AGREEING WITH GOBINDA CHANDRA TAGORE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483
Section 498-Even if there is any good ground for bail on merit in the facts of the case, that alone can never be a ground, for granting anticipatory or pre-arrest bail. In addition thereto, the accused is to show the Court that the purpose of the proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by abusing the process of law. (PER GOBINDA CHANDRA TAGORE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483
Section 498-The accused-petitioner is a candidate for the ensuring City Corporation Election and his nomination paper has been accepted and his election symbol has been allotted. Under these exceptional and extra-ordinary circum- stances the accused-petitioner may be enlarged on anticipatory bail. (PER QUAMRUL ISLAM SIDDIQUE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483
Section 498-The accused had secured the reports on influencing the doctors. More so, accused is a under trial prisoner and if he at all has been suffering from those diseases, the jail authority ought have sent him to BSMMU where there is provision for keeping prisoners in prison cells. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230
Section 498-We are convinced that the accused has not only misled the court below, he has also misland the High Court Division and this Court as well by showing various ailments of serious nature and in connivance with the doctors, he has secured the order of bail. He has also prevented the trial court to proceed with the trial of the case. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230
Section 498-The trial of a sensational murder case is being delayed and thereby, they have been interfering with the administration of justice. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230
Section 498- In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True, the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. Mia Nuruddin (Apu) vs State. 68 DLR (AD) 290
Section 498-If the police is allowed unlimited time to complete the investi- gation it appears that there is no accountability in their action, and therefore it would tantamount to give upper hand to them depriving the petitioner to get fair treatment. (Per Md Mozibur Rahman Miah, Jagreeing with Sheikh Abdul Awal, J) Md Hossain (Driver) vs State, 70 DLR 20
Section 498-Mere considering the quantity of contraband drugs cannot be any deciding factor to grant or refuse bail to any accused person rather discretion should be exercised in granting bail considering the overall averments so figured in the prosecution documents. (PER MP MOZIBUR RAHMAN MIAH, JAGREEING WITH SHEIKH ABDUL AWAL, J) Md Hossain (Driver) vs State, 70 DLR 20
Sections 498 and 561A-After sub- mission of the police report, there is no scope for anticipatory bail or pre-arrest bail. Ali Haider Chowdhury vs State, 65 DLR 116
Sections 498 and 561A-Indisputably the petitioner straightaway surrendered before the High Court Division without surrendering to the Court below and obtained pre-arrest bail It is well-settled that an order of anticipatory or pre-arrest bail can not be passed after submission of police report in a case. Nurussafa vs State 64 DLR 80
Sections 498 and 561A-Fugitive- Direct surrender before the High Court Division for the first time after submission of police report or after framing of charge by an accused will be "de hors" the law giving rise to judicial indiscipline and anarchy. Nurussafa va State, 64 DLR 80
S. 499 and 501-The words used in the subject matter of defamation is not a matter to hurt the religious feeling of the complainant in any manner whatsoever. Moreso, in the re-joinder the petitioner expressed his sincere regret for publishing the same stating that it has done in good faith, and he had no intention to hurt anyone of his religious feelings. Shafiq Rehman Vs. Mohd. Hasanul Alam and another, 2 LNJ (2013)-HCD-229.
Section 500—When an accused is discharged pursuant to a final report that means that the accused has been discharged from custody under section 500 of the Code and not discharged from the case. Nurul Hoque vs Bazal Ahmed 48 DLR 327.
Sections 509 and 509A-The inquest and post-mortem reports were tainted with ill motive and appropriate departmental proceedings should be commenced against the persons, who did it to defeat justice. State vs Md Rafiqul Islam alias Shakil, 70 DLR 26
Section 509A—Post-mortem report although excluded from consideration while dealing with the prosecution ease due to its having been brought on record without compliance of the provision of section 509A, the defence could very well use and refer to any portion of the report for its own purpose and for assisting the Court in reaching its decision. Tariq Habibullah vs State 43 DLR 440.
Section 509A—Post-mortem report—For bringing such report in evidence strict compliance of section 509A of the Code is necessary. The report of the post-mortem examination was neither produced by the doctor who had held the post-mortem examination nor the doctor was examined as a witness in the trial. While producing the report PW 7, an Investigating Officer, had shown no cause explaining the circumstances under which the doctor could not be produced in court. Tariq Habibullah vs State 43 DLR 440.
Section 509A—Post-mortem report—The trial Court committed error of law in considering and relying upon the post-mortem report when it was produced in court without fulfilling the requirements of section 509A. Khelu Mia vs State 43 DLR 573.
Section 509A—Report of post-mortem examination—As the doctor concerned who held the post-mortem examination was not examined although he was available in the country at the relevant time, the report was not legally admitted into evidence and as such the conviction based thereon is illegal. Abdul Quddus vs State 44 DLR 441.
Section 509A—Post-mortem report is an admissible evidence when three requirements laid down in the section are satisfied. Ezahar Sepai vs State 40 DLR 177.
Section 509A—The post-mortem report was not a substantive evidence before insertion of section 509A in the Code of Criminal Procedure by Ordinance No. 24 of 1982. Ezahar Sepai vs State 40 DLR 177.
Section 509A—Non-examination of the doctor was not fatal for the prosecution case. Conviction can be based on the evidence of a solitary witness if the testimony is not tainted with suspicion. Ezahar Sepai vs State 40 DLR 177.
Section 509A—Ext. 13, post-mortem report of the deceased, has been admitted into evidencei in utter violation of the mandatory provisions of section 509A. The doctor who held the post-mortem on each of the dead bodies was not examined during the trial. Md Ali Haider vs State 40 DLR 97.
Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. The prosecution filed an application for issuing warrant against Dr M Billah Azad for his appearing in Court, and it was allowed by the order dated 29-2-88. It does not appear from the record that after the application filed by Dr M Billah Azad, any summons was issued and served on him or the said warrant of arrest was executed. Nevertheless, the prosecution filed an application on 1-3-88 vaguely stating that his present address was not known, although his address was available in the record. The learned Sessions Judge, it seems, without noticing the conditions of section 509A of the Code of Criminal Procedure accepted the post-mortem report as Ext.10 Learned Sessions Judge illegally admitted into evidence the said post-mortem report without noticing that the prosecution did not care to fulfil the conditions of section 509A Ext. 10 is thus inadmissible in evidence and so there remains no positive proof as to the cause of Amiruddin’s death. State vs Fulu Mohammad 46 DLR 160.
Section 509A—The doctor who examined the victim girl was not available and therefore another doctor PW 9 was examined to prove the handwriting of the examining doctor. His report was admissible in law. Sobesh Ali vs Jarina Begum 49 DLR (AD) 143.
Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. State vs Fulu Mohammad 46 DLR 160.
Section 509A—The case is the outcome off admitted enmity between the parties—The failure to examine the doctor who held post-mortem examination on the body of the deceased to together with absence of any alamat justify the defence case. Jalal Uddin vs State 56 DLR 69.
Section 509A—The post mortem report admitted into evidence without complying with the requirements of section 509A of the Code must be left out of consideration. There is therefore, no medical evidence as to the cause of death of the deceased. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.
Sections 512 & 339B(2)—Since section 339B(2) provides for absentia trial, section 512 has no application in the case of an accused who appeared before the court but thereafter absconded. Baharuddin vs State 47 DLR 61.
Section 516A—Section 516A empowers a criminal Court to pass an order for custody and disposal of property during any enquiry or trial and it does not empower an Investigating Officer to give any property in the custody of any person. Siddique Ahmed Sowdagar vs State 40 DLR 268.
Section 516A—Where the offence is not committed regarding particular property the Court has no authority to pass order directing sale of such property and deposit the sale price in Court’s account. Shahabuddin vs Abdul Gani Bhuiyan 45 DLR 217.
Section 516A—Custody of property pending trial for theft and cheating—Jurisdiction of civil Court over such property—Order passed by the criminal Court giving custody of a vessel, the subject-matter of the criminal case, to the local Upazila Chairman was subject to revision and the application under section 151 CPC made before the civil Court by the complainant as the plaintiff in his suit for injunction is misconceived. Mitali Shipping Lines vs Bhuiyan Navigation Agency 44 DLR 230.
Section 516A—The Court is entitled to release the property in the Jimma of the claimant to save the same from gradual damage being exposed to sun and rain. The petitioner claiming to take the same in his jimma is bound by the bond to produce the same in Court on and when directed by the Court. Shahnewaz Karim vs State 62DLR 67.
Sections 516A & 517—About disposal of property, there is no provision in the Act and therefore the Special Tribunal shall dispose of the property under section 51 6A or 517 of the being empowered to do so by section 29 of the Act which provides that the provisions of the Code of Criminal Procedure, so far only as they are not inconsistent with the provisions of the Act, shall apply to the proceedings of Special Tribunals, and Special Tribunals shall have all the powers conferred by the Code Criminal Procedure on a Court of Sessions exercising original jurisdiction. Mahbub Alam vs Commissioner, Customs, Excise and VAT 62 DLR 395.
Section 517—Disposal of seized goods—It is for the trial Court to consider all the relevant facts and hear all the necessary parties before making an order for disposal of goods under section 517 CrPC, if called upon. Sompong vs State 45 DLR (AD) 110.
Disposal of Property
For an order to be passed under the provision of section 517(1) Cr.P.C for disposal of the goods after the conclusion of an enquiry or trial, the Court has to satisfy itself as to the conditions mentioned therein-Cr.P.C. S. 517(1) Sompong Vs. The State 13BLD (AD) 121
Sections 517, 520 and 561A—Stolen necklace—Whether the possession of the same should be restored to the petitioner who was acquitted of charge of retention of stolen property due to incomplete evidence and also upon benefit of doubt—Stolen necklace cannot be restored to the petitioner under such circumstances. Hajera Khatoon vs State 40 DLR 280.
Section 517(1)—The Court has a very wide discretion as to the mode of disposal of the property produced before it or in its custody. Monaranjan Das vs State 40 DLR 485.
S. 517 and 561A- Disposal of a seized property after trial and abuse of the process of the Court.
The Magistrate has the power to make order of temporary custody of a property produced before him regarding which an offence appears to have been committed or which appears to have been used for the commission of the offence. The Magistrate has no power to decide the question of title. His only concern is to see which of the contending parties is prima facie entitled to ownership and possession thereof and to hand over its possession to him for avoiding damage and destruction of the property on obtaining proper jimmanama undertaking to produce the disputed property before the Court whenever so directed. The learned Magistrate as well as the disputed property before the Court whenever so directed. The learned Magistrate as well as the learned Additional Sessions Judge erred in law in refusing to had one. The CNG in question to the possession on jimma (bond). Md. Mamun Vs. The State (Cri), 2 ALR (2013)-HCD-344.
Section 522—Power to restore possession of immovable property—Provision of section 522 of the Code cannot be made applicable to the j’ accused persons by filing a separate application to the trial Court after disposal of the appeal and revisional application arising out of the case against him under section 447 Penal Code. Dr Md Abdul Baten vs State 43 DLR 60.
Section 522—Restoration of possession of immovable property—The order of the Court restoring possession must be passed within one month from the date of conviction. The Magistrate having passed the order of restoration beyond 30 days of the order of conviction acted without jurisdiction. The provision of section 522 cannot be availed of if the dispossession is not by means of criminal force or show of force or criminal intimidation. In the instant case the accused petitioner wrongfully entered into the shop at 10-30 PM but at that time the complainant opposi party or his wife, who was the tenant, was not upon the scene. There was neither assault nor any resistance or use of criminal force in the act of dispossession by the accused-petitioner. The Magistrate’s order is bad on this count also. Sheikh MA Jabbar vs AKM Obaidul Huq 43 DLR 233.
Restoration of possession
It provides that whenever a
person is convicted of an offence attended by criminal force or show of force
or by criminal intimidation and it appears to the court that by such force or
show of force or criminal intimidation any person has been dispossessed of any
immovable property, the court may, if it thinks fit, when convicting such
person or at any time within one month from the date or the conviction order
the person dispossessed to be restored to the possession of the same.
The use of force, show of
force or criminal intimidation at the time of criminal tres- pass upon the case
land had not been held proved in the trial court or in the appellate. court.
The High Court Division has found no illegality in the said concurrent
findings. In the circumstances the said Court has acted beyond jurisdiction in
passing the order for restoration of possession of case land to the
complainant-Cr.P.C Section. 522(1) Mohammad Ali Member Vs. Abdul Fazul Mia
&ors., 19BLD (AD)260
Section 523(1)—The act of the Investigating Officer to give custody of the property on the basis of the practice in vogue in the Police Department without any support of the statutory provisions of law to that effect in violation of section 523 CrPC is without any lawful authority and is illegal. Siddique Ahmed Sawdagar vs State 40 DLR 268.
Witness protection Security of the informant and the witnesses has to be ensured:
On perusal of the impugned judgment it reveals that the High Court Division came to a finding that both the parties forced each other to give false testimony or give testimony in favour of either of the parties. And as such the High Court Division ought to have directed the law enforcing agency to take necessary steps for ensuring security of the informant and the witnesses of the case so that they could adduce their evidence in court without any fear. (Para 11)
We are of the view that justice would be best served if we direct the Superintendent of Police, Narayangonj to take all necessary steps for ensuring security of the informant and witnesses of the case, so that they may adduce their evidence in the Court without any fear and interruption from any corner. Accordingly, the Superintendent of Police, Narayangonj is directed to take necessary steps in ensuring security of the informant [petitioner] and witnesses of the case so that they may adduce their evidence in the Court in accordance with law. (Para 13 and 14) [Mst. Fatema Vs. The State & ors (Jahangir Hossain, J) 17 SCOB [2023] AD 79]
Section 526-High Court Division without issuing any Rule upon the State disposed of the application transferring the case from the Divisional Special Judge to the Sessions Judge, Barisal. Appellate Division does not approve this kind of exercise of power by the High Court Division. Anti-Corruption Commission vs AKM Shamim Hasan, 64 DLR (AD) 82
Section 526—Transfer of case—Plea of bias—The question of admissibility or non-admissibility of evidence should be left to be agitated when the case is argued. Merely because a Court acted illegally in allowing some evidence to go into the record or disallowing some evidence as irrelevant or took a wrong view of the law in passing an order would not by itself be a ground for bias (Per Anwarul Huq Chowdhury)
Per Habibur Rahman Khan J (agreeing): In the present case the order refusing to grant adjournment having been passed by the Special Tribunal not in violation of any mandatory provisions of law but in exercise of his discretionary power, could not itself give rise to a ground for transfer as no prejudice could be shown to have been caused to the accused Hussain Mohammad Ershad vs State 43 DLR 347.
Section 526—Transfer of a criminal case— Conditions for transfer—The High Court Division may withdraw a case to itself without issuing any notice upon either party when some question of law or unusual difficulty is involved therein. Neither of these situations is present here. There is no justification for the impugned transfer. Sirajul Islam (Md) vs Keramat Ali Bhuiyan 47 DLR (AD) 64.
The petitioner is an old
man and Professor of a University suffering from ailments and is not able to go
to Gopalganj. Considering the nature of the case we direct that the case may be
withdrawn from the Magistrate Court. Gopalganj to the Court of Chief
Metropolitan Magistrate, Dhaka where the petitioner must surrender and pray for
bail. Dr. Ahmed Sharif Vs The State and an- other, 17BLD(HCD)236
Section 526―The order of transfer of the case is set aside as the Court below unwillingly transgressed a basic principle of adjudication— ‘hear the other side’—for an opportunity to meet allegations. Khalequzzaman vs Md Illias 48 DLR (AD) 52.
Section 526―The High Court Division can suo motu transfer a sessions case. The informant and his victim brother by preferring the application has merely informed the High Court Division about the state of the circumstances surrounding the sessions case. Jahir Gazi vs Belal Hossain, Advocate 51 DLR (AD) 88.
Section 526―Order of transfer of a case passed ex parte without any notice either to the accused or to the State and without calling for any report from the Court concerned by merely saying that without accepting or rejecting the grounds for the transfer the Court thinks justice will be met if the case is disposed of by the Court of Sessions Judge cannot be legally sustained. Moslem Uddin (Md) vs State 52 DLR (AD) 50.
Section 526―For transfer of a criminal case from one Court to another or from one District to another, there must exist a reasonable apprehension in the mind of the applicant that he will not get a fair and impartial trial in the Court concerned. Allegation of bias in the Court may provide a good ground for transfer, provided there is some factual basis to substantiate it. Shahjahan Faraji vs State 54 DLR 457.
Section 526―The contention that the transfer of the case from Munshiganj to Dhaka for trial will tend to the general convenience of the parties as most of the witnesses hail from Dh has substance. Roquib Mohammad Fakrul alias Rocky vs Md Abdul Kashem 56 DLR (AD) 191.
Section 526—unless the truth or basis of the apprehension is shown the High Court Division cannot accept prayer for transfer. Abdul Halim Ukil vs State 56 DLR 481
Section 526―When any party to any proceeding informs the court that he will move an application for transfer of the case from the Court, presiding officer of the court must then and there stop his pen in order to offer scope to the party to move such petition and wait for instruction. He can, in no way, move forward with the trial of the case. Abdul Halim Ukil vs State 56 DLR 481.
Section 526―Forum for trial of the case should not be decided at the whim of the parties— Grounds alleged by the petitioners being not consonant with section 526 of the Code, the petition for transfer of the case is rejected. Abdul Mataleb Howlader vs State 56 DLR 607.
Section 526―Transfer of case—the complainant, a local leader of the ruling party, is trying to put pressure on the local administration and magistracy —As such, fair and impartial trial may be hampered. The accused being prominent personalities in the field of Journalism, are residing in Dhaka—When their security of life is apprehended if they are to go to Magura frequently in connection with the trial, their inconvenience and apprehension of insecurity of life may be taken into consideration. Mahfuz Anam vs State 58 DLR 60.
Section 526(1)—When the Additional Sessions Judge has already observed that he entertains doubt as to whether the State will succeed in proving the case against the accused, the State has every reason to think there will be no fair trial in his court and the case needs be transferred to some other Court of competent jurisdiction. State vs Auranga @ KM Hemayatuddin 46 DLR 524.
Section 526B—Counter cases, trial of—It is desirable that counter case be tried by the same judge simultaneously—by such trial the court will get opportunity for looking to all the aspects of both the cases which is necessary for arriving at a correct decision and to avoid conflicting findings. Lutfar Rahman vs Aleya Begum 45 DLR 57.
Section 533 of the Code of Criminal Procedure allows for taking evidence of learned Magistrate to cure the defect if the provisions of sections 164 and 364 of the Code are not complied with but there is a condition. The defect can only be cured if the error has not injured the accused as to her/his defence on merit. Learned Magistrate, who recorded the confession deposed as PW 11 did not state the reason why he had recorded the confession beyond the Court hour. He rather admitted that he had recorded the confession at about 7.30 pm, which was long after the Court hour. Thus, the defect was in no way cured. [73 DLR 348]
Section 533—Any irregularity in recording the confession is curable under section 533 CrPC. Ratan Kha vs State 40 DLR 186.
Section 533—Credibility of confessional statement—No substantial compliance i cure the defect of non-compliance 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 refection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s believing the same to be voluntary ought to be treated as conclusive evidence of facts stated therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389.
Sections 533 & 164—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 535-Though accused Mobile Quader was not charged under sections 302/109 of the Penal Code, in view of the provisions of section 535 of the Code, we do not find any legal difficulty in finding him guilty under the sections and convicting and sentencing him thereunder as there are abundance of evidence against him to warrant the conviction under the sections. Moreso, we do not see any prejudice to be caused to accused Mobile Quader for non framing of charges against him under sections 302/109 of the Penal Code by the Tribunal as he got all the opportunities to defend him by cross examining the prosecution witnesses State vs Abdul Kader @Mobile Kader. 67 DLR (AD) 6
Section 537-Cognizance Scheduled and non-scheduled offence-When the very taking of cognizance of an offence, the framing of accusa- tion and the trial upon charges of both scheduled and non-scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing of charge by the Court having jurisdiction is one thing while framing of charge without having any jurisdiction is a completely different thing. Mozammel Huq vs State 43 DLR 614.
Section 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. 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. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Section 537-Sentence in lump is a mere irregularity curable by section 537 of the Code. Be that as it may, the trial Judge should have sentenced the accused- Ambassador under either of the sections of the two enactments keeping in view the legal position as spelt out. ATM Nazimullah Chowdhury va State, 65 DLR 500
Section 537-Since there appears no special defence case on behalf of the accused in respect of the trap case that the PW I who led the trap party had any connivance with Abdus Salam Khokon in order to make a trap, such a defect which might have been taken place for the very new enactment of the Rules and as I have said it earlier that after 11 days of the enactment of the Rules, the occurrence of this case has taken place, so the defect in obtaining the permission from the authority by PWI who led the trap party is curable under section 537 of the Code. Mohoshin Miah (Md) vs State, 67 DLR 114
S. 537-Sentence in lump is a mere irregularity curable by section 537 of the Code. Be that as it may, the trial Judge should have sentenced the accused Ambassador under either of the sections of the two enactments keeping in view the legal position as spelt out. ATM Nazimullah Chowdhury Vs. State, 65 DLR (2013)-HCD-500.
S. 537-By reason of error or omission in the charge; the conviction shall not be reversed and altered.
In the instant appeal, Appellants were convicted under different counts including sections 302/34 of the Penal Code for causing the death of victim Sukkur Ali. Appellate Division held that the trial court has not followed the provision of law and convicted the appellants without application of its judicial mind, which is an irregularity on the part of the trial court, at the same time it cannot be ignored that this irregularity has prejudiced the appellants who suffered a lot for no fault of theirs but for the laches of the learned Sessions Judge. On consideration of their sufferings, appellate divisions view is that ends of justice will be best served if the appellants are given the benefit of doubt instead of sending the case back on remand for fresh examination. Accordingly, appellants are acquitted of the charges and set at liberty. Habibur Rahman & Habu and others Vs. The State, (Criminal), 18 MLR (2013)-AD-108.
Section 537—When sanction for prosecuting government servant is invalid, the trial Court would not be a court of competent jurisdiction and a defect in the jurisdiction of the court can never be cured under sections 5 & 7 CrPC. Abdul Hakim vs State 45 DLR 352.
Section 537—The remand order amounts to double jeopardy for the petitioners and offers chance to the prosecution to remedy its lacuna. Such a remand ‘should not be made. Fazal vs State 43 DLR 40.
Section 537—Cognizance—Scheduled and non-scheduled offence—When the very taking of cognizance of an offence, the framing of accusation and the trial upon charges of both scheduled and non-scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing of charge by the Court having jurisdiction is one thing while framing of charge without having any jurisdiction is a completely different thing. Mozammel Huq vs State 43 DLR 614.
Section 537—Adoption of a procedure prohibited by Code of Criminal Procedure is not curable by section 537 CrPC. Lal Miah vs State 40 DLR 377.
Section 537—Defect in framing of charge when not curable—a mere defect in framing of charge by a court having jurisdiction is one thing while the framing of charge without having any jurisdiction is a completely different thing. The contention that section 537 of the Code could be invoked to cure defect due to lack of jurisdiction cannot be accepted. Joinder of scheduled and nonscheduled offences and the trial of both these offences were illegal. Mozammel Hoq vs State 42 DLR 527.
Section 537—This provision of law will also apply to the Criminal Procedure Code including section 155. The prevailing opinion is that section 537 may be taken to cover the error, omission or irregularity in the widest sense of these terms provided there has been no failure of justice and there is no restriction in the section itself. Golam Moula Master vs State 46 DLR 140.
Section 537—Sentence passed in lump is only an irregularity not affecting the Court’s competence to pass order of conviction and sentence. Haider Ali Khan vs State 47 DLR (AD) 47.
Section 537—A Special Tribunal is not competent to try a case under the Criminal Law Amendment Act, 1958 read with the provision of the Prevention of Corruption Act, 1947. The Assistant Sessions Judge either out of ignorance or due to his callousness signed the judgment as Special Tribunal. But the accused-appellant has not been prejudiced in any manner whatsoever. So on this ground alone there cannot be any question of the trial to be vitiated for want of competence. Nizamuddin Dhali (Md) vs State 48 DLR 507.
Section 537—Defect in framing the charge is curable and that for improper examination of the accused under section 342 the case should be sent back on remand for curing the defect. Nizamuddin Dhali vs State 48 DLR 507.
Section 537—Though the words “finding, sentence” in this section relate to concluded trial or hearing the word “order” does not relate to only concluded trial or hearing but also to order passed in a pending proceeding. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.
Section 537—While framing charge against the accused under sections 2 and 4 of the Anti- Terrorism Act, 1992 the missing of words ‘পরিকল্পিতভাবে বা আকস্মিকভাবে’ is a simple omission which is curable under section 537 CrPC. Abdul Kader @ Manju vs Stale 46 DLR 605.
Section 537—The sanction order seems to be too mechanical and is no sanction in the eye of law. Absence of sanction cuts at the very root of the prosecution affecting jurisdiction of the court and this defect is not curable. Syed Mustafizur Rahman vs State 53 DLR 125.
Section 537—Although the charge framed under section 399 of the Code is patently defective, there are sufficient materials on record to justi1,’ the conviction of accused the under section 399, he being a member of the assembly consisting of 8/9 persons. Karam Ali vs State 54 DLR 378.
Section 537—The omission of the expression ‘যৌতুকের জন্য’ which is a vital ingredient of the offence under the aforesaid sub-section (2) being a major omission makes the charge materially defective and the defect is not curable under section 537 of the Code because this omission deprived the accused from taking proper defence and thereby caused prejudice to him. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527.
Sections 537, 155 & 190—Non cognizable offence—Mere irregularity like investigation by an officer not authorized to investigate a no 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 537 & 243—The alleged admission of guilt was not recorded as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the violation of which causes prejudice to the accused and is not curable under section 537 CrPC. The order of conviction and sentence as against the appellant on the basis of such so-called admission of guilt cannot therefore be sustained in law and the same should therefore be set aside in the interest of justice and the case should be sent back on remand to the trial Court to hold that trial afresh from the stage of framing the accusation or charge again after hearing the parties and considering the materials on record in accordance with the law in the light of the observations made above. Saheb Ali Miah vs State 46 DLR 238.
Sections 537 & 342—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abdul Khayer vs State 46 DLR 212.
Sections 537 & 342—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abul Khayer vs State 46 DLR 212.
Sections 537, 342 & 164—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 540—Examining prosecution witnesses as Court witnesses—Magistrate has power to summon material witness whose relevance is disclosed in evidence, but he cannot examine them as Court witness—Magistrate’s order has been modified accordingly. Helaluddin vs State 40 DLR 352.
Section 540―Scope of section 540 consists of two parts—the first part is discretionary and the second part is obligatory. Md Jalaluddin Ahmed vs State 40 DLR 564.
Section 540—It is obligatory for the Court to allow the examination of witness if he thinks it is essential for the just decision of the case. The accused will not be prejudiced if the witness is examined in the Court. Md Jalaluddin Ahmed vs State 40 DLR 564.
Section 540―The ends of justice have been negatived by the trial Court by refusing to recall certain witnesses for cross-examination by the appellant. The trial Court is not meant for only convicting or acquitting the accused persons but their duty is to administer justice. In the present case before us by refusing to recall certain witnesses for cross-examination by the appellant the ends ofjustice have been negatived by the trial Court. In such circumstances for ends of justice we are inclined to set aside the order dated 1-Il- 88 passed by the learned Tribunal and direct him for affording opportunity to the appellant to cross- examine the witnesses already examined by the prosecution. This is very much necessary for ends of justice. Jamil Siddique vs State 41 DLR 30.
Section 540—Court’s power to examine witness not named in the FIR—The scope of the provision in CrPC in this connection appears to be wide. It gives a discretion to the court to examine such witness at any stage. It is imperative for the Court to examine such a witness if his evidence appears to be essential for a just decision. Akhtar Jahan vs State 42 DLR 413.
Section 540—Power to summon material witness—Any party to a proceeding during the trial may point out the desirability of relevant evidence being taken and there is no limitation with regard to the state or the manner in which it is to be used. The only criterion is that the power to examine additional witness is to be used before the pronouncement of judgment and it is to be found necessary by the Court for doing justice. It appears that due to certain circumstances beyond the control of the prosecution the witnesses could not be produced and examined earlier but evidence is vitally important for the just and proper adjudication of the case. The learned Additional Sessions Judge having passed the order for the examination of the additional witness after due consideration of the facts and circumstances of the case invoking the aid of the provision of law being herself convinced that examination of the witness is necessary for proper adjudication of the case we do not find any illegality or impropriety in the order calling for interference in this revisional jurisdiction. Hemayatuddin vs State 46 DLR 1.
Section 540—The section is expressed in the widest possible term— It cannot be said that the intention of the section is to limit its application to Court witnesses only. Hemayatuddin @ Auranga vs State 46 DLR (AD) 186.
Section 540—There is absolutely no material to show that accused Ramizuddin had any knowledge about the proceeding ever since it was started against him, as at all material times he was abroad. In that view the discretion exercised by the Additional Sessions Judge allowing the accuser’s application for cross-examination of PWs affirmed by the High Court Division calls for no interference. Nimar Ali vs Ramizuddin 50 DLR (AD) 162.
Section 540
No doubt under section 540 of the Code the Court can call for any witness for the ends of justice. However, for passing such order, the trial Court or Court of appeal below must be given satisfactory reasonings in issuing the summons to the witnesses. 29 BLC (AD) (2024) 45
Section 540―Section 540 of the Code is expressed in the widest possible terms—It cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Chutta Miah vs State 56 DLR 610.
Section 540―It is only for the purpose of just decision of a case that the Court can have resort to section 540. Shahinur Alam @ Shahin vs State 56 DLR 10.
Section 540―This section is expressed in the widest possible term and it cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Kazi Ali Zahir alias Elin vs State 56 DLR 244.
Section 540―The Court shall summon and examine witness under this section only if it appears to it essential for a just decision in the case. Tofail Ahmed vs State 56 DLR 250.
Section 540—Question of further investigation of the case for including names of two witnesses as charge-sheet witnesses does not arise, for, the court has power to examine any person as a witness. The name of any person is included as witness in the charge-sheet or not is immaterial. Ayub Ali vs State 57 DLR 230.
Section 540—Court is entitled to call for as many witnesses as required for bringing out the truth. The Sessions Judge is the arbiter and the Judge. He is not party nor an investigator. He is not expected to fill up the gaps left by the prosecution. The overriding consideration for him while exercising power under section 540 CrPC is the interest of justice. Mahatab vs State 63 DLR 223.
Section 540—Since the accused-petitioners prayed for recalling PW 2, PW 3 and PW 4 as they omitted to cross-examine them on some vital points which are essential to find out the truth, the trial Court ought to have allowed the application. Shariful Bhuiyan vs State 63 DLR 524.
Section 540-It is now well settled that the trial Court has unfettered power under section 540 of the Code to call any person to be examined as witness at any stage of trial or inquiry, if it appears essential for just decision of the case before it, no matter whether his statement was recorded under section 161 of the Code. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500
Section 540A-The petition under section 540A was filed by the Public Prosecutor, though it has not been expressly mentioned whether the Public Prosecutor can file such an application; the Code does not prevent the Public Prosecutor from filing as such. The case reported in 14 DL.R, aides us in concluding that, where there is no such provision preventing the Public Prosecutor from filing such an application, there is no harm if the Public Prosecutor draws the attention of the Court by filing such an application for the sake of expedition and deliverance of Justice. Begum Khaleda Zia vs Anti- Corruption Commission, 70 DLR 755
Section 540A-Although it is, of course, desirable for the accused to be present during the argument stage of the trial, it is less important since, the argu- ments are usually prepared by the Advocates, based on the instructions of the accused. This is to say that, at times where the accused has chosen to absent them- selves from the trial, and in particular, during the argument stage; assuming they have representation, the Court may take the view that for the sake of delivering appropriate Justice, the trial should continue in their absence. Begum Khaleda Zia vs Anti-Corruption, Commission, 70 DLR 755
Section 540A-The application under section 540A of the Code clearly is intent on ensuring the deliverance of Justice, especially when faced with a non- cooperative accused. Whether the accused is in custody or not has no direct relation to the application of section 540A and, as such, the Judge has not failed in his considerations. Begum Khaleda Zia vs Anti-Corruption Commission, 70 DLR 755
Section 540A-Either, Begum Khaleda Zia is to be forced into appearing in Court or alternatively, she may be allowed to exercise her right to not appear in Court, while allowing the Court to exercise their prerogative under section 540A of the Code and continuing with the trial or inquiry in her absence. Begum Khaleda Zia vs Anti-Corruption Commis- sion, 70 DLR 755
Section 540A—Complaint case and police case over the same incident—How their trial will proceed—A fair procedure to be adopted in the disposal of the two cases would be for the Trial Judge to take up the complaint case first for trial. The Trial Judge may call the witnesses mentioned in the police case, if they are not already examined on behalf of the complainant, as court witnesses so that they can be cross-examined by both the parties. If the trial ended in conviction in the Complaint Case the Public Prosecutor would consider whether prosecution of police case should be withdrawn with permission of the court or not. If the police case is taken up first for trial the complainant would be under handicap insofar as to cross-examining the witnesses- for the prosecution. Normally, the Public Prosecutor is to be in charge of the case even if the trial is based on a private complaint. Motleb Mondal vs State 58 DLR 282.
Section 540A- Section 540A of the Code indicates that the personal presence of the accused is not always mandatory, the Court can exempt from personal appearance if the conditions provided therein are fulfilled- To grant or refuse to grant exemption from appearance to an accused is in the discretion of the court, and where the discretion is properly exercised, a superior court should not interfere with it. From the facts and circumstances mentioned above, it appears that the discretion of the Special Judge as provided in section 540A of the Code of Criminal Procedure has been exercised judicially and reasonably. From the order of the Special Judge it appears that the petitioner was represented by the learned Advocates who are 126 in number.
Since the petitioner herself asserted before the Court that she would not be able to appear before the Court and that jail authority by endorsement intimated the Court that the petitioner is physically sick and she would not appear before the Court and that the learned Advocates of the petitioner. In such a situation, the learned Special Judge did not commit any error of law in exercising its discretion. Existence of the Courts is for dispensation of justice. The process of Courts should not be used for harassment of the parties. Section 540A of the Code indicates that the personal presence of the accused is not always mandatory, the Court can exempt from personal appearance if the conditions provided therein are fulfilled. However, such discretion has to be exercised reasonably, fairly and not arbitrarily. The High Court Division rightly rejected the criminal revisional application.... Begum Khaleda Zia =VS= Anti-Corruption Commission, [6 LM (AD) 208]
Section 549—Since the appellants were not on active service within the meaning of section 8(1) of the Army Act, 1952 the appellants cannot be tried under the Army Act and, as such, there was no offence of mutiny leading to murder in the facts of the instant case. Even if one were to accept for the sake of argument that offences committed were civil offences within the meaning of section 8(2) read with section 59(2) of the Army Act, there is no legal bar in trying those accused persons in the Sessions Court in compliance with the provisions of section 94 of the Army Act read with section 549 of the CrPC. There is no legal bar for trial of the appellants in the Criminal Court in the relevant case, inasmuch as, the offences committed are in the nature of murder simpler. (Per Md Muzammel Hossain J) Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 549- Criminal Court and Court Martial A Criminal Court and Court Martial have concurrent jurisdiction to try a civil offence then under Section 94 of the Army Act it is the discretion of the prescribed Officer to decide before which Court the proceedings shall be instituted. If he decides that it should be instituted before a court-martial, then he can direct that the accused shall be detained in military custody. But in the instant case, the prescribed officer has neither exercised his jurisdiction nor instituted the proceedings before the court-martial. Furthermore, the convict appellants did not even raised any objection before the criminal Court during trial. It is only for the prescribed officer to decide as to the forum of trial and, as such, in the instant case, neither the prescribed officer nor the accused appellant challenged the forum of the trial, rather in the Appellate Division, at a belated stage, such a challenge is not tenable in law. Since in the instant case, trial of a civil offence before a criminal Court is found to be legal and valid and, as such, the argument advanced by the defence is not tenable in law. (Per Md. Muzammel Hossain, J) ... Major Md. Bazlul Huda(Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386]
Sections 552 & 100—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.
Code of Criminal Procedure, 1973 [India]
Section 245(2) Criminal complaint is an abuse of the process of Court and is required to be quashed The material on record is absolutely clear that the acquisition was from the funds of Appellant No.1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No.2 and Respondent No.2. If Respondent No.2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor (supra) and are convinced that the instant case calls for interference under Section 482 CrPC. Further, from the facts that Appellant No.1 had disowned Respondent No.2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed. Allow this appeal, set aside the orders passed by the Courts below and allow the application for discharge under Section 245(2) CrPC in complaint No.3804 of 2009 on the file of third Additional Chief Judicial Magistrate, Ghaziabad....Sri Suresh Kumar Goyal -VS- State of Uttar Pradesh, [6 LM (SC) 135]
Sections 437, 439- Bail- In Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another [3 (2010) 14 SCC 496], it was held that:
(i) Whether there was a prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of accusations;
(iii) severity of the punishment in the event of a conviction:
(iv) danger of the accused absconding or fleeing, if granted bail; (v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of repetition of the offence;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger of justice being thwarted by grant of bail.
There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail. Allow the appeal and set aside the order of the Allahabad High Court granting bail to the accused.... Sudha Singh -VS- The State of Uttar Pradesh, [10 LM (SC) 23]
Sections 437, 439- Bail-There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. We are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody's case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity. The appellant is granted bail on conditions that may be reasonably fixed by the trial judge...... Dataram Singh = VS= State of Uttar Pradesh, [4 LM (SC) 110]
Section 482- Quashing the complaint In Zandu Pharmaceutical Works Limited and Ors v. Mohd. Sharaful Haque and Another this Court referred to State of Haryana and Ors. v. Bhajan Lal and Ors. and summarized and illustrated the category of cases in which power under Section 482 of the Criminal Procedure Code could be exercised. This court observed and held:-
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." (6 2005 (1) SCC 122; 7 (1992) Supp. I SCC 335]
The High Court clearly erred in law in dismissing the complaint, which certainly disclosed an offence prima facie. At the cost of repetition, it is reiterated that it was not for the High Court to enter the factual arena and adjudicate the merits of the allegations. The appeal is, therefore, allowed and the impugned order of the High Court quashing the complaint is set aside. The first respondent shall proceed with further investigation in accordance with law....V. Ravi Kumar -VS- State, Tamil Nadu, [6 LM (SC) 126]
Code of Criminal Procedure, 1898
[Pakistan
Section 382-B- Benefit of doubt- This appeal is partly allowed in the terms that the sentence of death of the appellant-Amjad Shah is altered to that of life imprisonment under Section 302(b) PPC. The remaining punishment of fine and imprisonment in case of default thereof shall remain intact. He shall also be entitled to the benefit of Section 382-B Cr.P.C. Amjad Shah -VS- The State. [3 LM (SC) 105]
