Code of Criminal Procedure
Sections 1(2) and 339C —
Applicability of the Code of Criminal Procedure to the proceedings under the Special Powers Act and the Criminal Law Amendment Act, 1958. Section 1(2) of the Code of Criminal Procedure says "in the absence of any specific provision to the contrary, nothing herein contained shall affect any special law now in force". Similarly Section 2, theSpecial Powers Act provides that provisions of the Code shall apply tc case under the Act if they are not ino sistent with any provision of the said i — The Tribunal in view of this enabl provision will apply the provisions of Code in the trial before it.
Provisions in Section 6 of Criminal L Amendment Act (XL of 1958) and th< of Section 29 of the Special Powers / 1974, are exactly similar since there is dispute that the specified time for cone sion of the appellant's trial expired lo ago, further proceedings in respect of trial stand stopped and he stands relas&The court is clearly of the view tl Section 339C of the Code of Crimii Procedure is applicable to the procee ings as to trial of the appellant under t Special Powers Act, 1974 Kamruzzaman Vs. The State 10 BLD (AD) 190.
Section 1(2) & 339C-Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the Code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for "more speedy trial". If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law-makers. Kamruzzaman vs State 42 DLR (AD) 219.
Section 3(h)
Complaint—Complaint by an Attorney
It is a settled principle of criminal law that any person having knowledge of any criminal offence may set the law in motion by making a complaint to the appropriate authority even though he may not be personally injured or affected by the commission of the offence.
Where there is a General Power of Attorney authorising the power-of-attorney-holder to sign the complaint and appear and act on behalf of the grantor in all Courts, the attorney is entitled to do every necessary thing in that connection on behalf of the grantor. In the instant case the signing of the petition of complaint by and examination under section 200 Cr.P.C. of Anisul Hoque on behalf of his father Shamsul Haque were thus perfectly valid and proper. Tamizul Haque Vs. Anisul Haque, 16 BLD(AD)206
Section 4-Complaint Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer. Md. Solim Ullah -Vs.- The State, and others (Criminal) 15 ALR (AD) 100- 105
Section 4 (l)(m) —
"Judicial proceedings include any proceeding in the court of which evidence is or may be lega taken on oath "
When the Magistrate directs a furtr enquiry under Section 202 of the Code Criminal Procedure for ascertaining t truth or falsehood of the allegations < vulged in the complaint, no proceeding c be said to have yet started Dr. Jamsk Bakht Vs. Ameenur Rashid Chowdhury 1 BLD (AD) 314
Section 4(1 )(h)
Definitions of the term 'complaint' requires that in order to constitute a complaint an allegation regarding the commission of an offence by known or unknown persons must be made either orally or in writing to a Magistrate — It does not say that such an allegation to a Magistrate would be channelled through a police officer On the contrary, the definition expressly mentions that it does not include the report of the police officer The State Vs. Aynuzzaman 7 BLD (AD) 100.
Section 4(K)(L)-Inquiry and Investigation-Inquiry is always to be made by a Magistrate or any person as may be directed by the Court, whereas, the investigation has to be made by a Police Officer or by a person (other than a Magistrate) who is authorized by Magis- trate in this behalf. To investigate into a cognizable offence, no order of a Magistrate is necessary. Investigation is totally a different concept from that of inquiry. State vs Secretary, Ministry of Public Administration, 67 DLR (AD) 271
Section 4(I)(q)- The meaning assigned to the word "public" strongly indicates that a parti- cular case may also be tried in a place other than the normal place where the sitting of the Court of Sessions takes place. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 5-The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution, the word "law" means any Act, Ordinance, etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36.
Sections 5(2) & 339D-Where the charge has been framed under section 409 of the Penal Code and section 5(2) of Act II of 1947, and in the absence of any provision for revival of the case on the expiry of the period of 2 years provided in section 8(a) of the Criminal Law Amendment (Amendment) Act there was no legal authority to revive the case under the provision of the Code of Criminal Procedure. Nur Israil Talukder vs State 52 DLR (AD) 51.
Section 5(2)
The Code of Criminal Procedure, 1898
Section 5(2) r/w
The Depository Act, 1999
The Depository Act is a special law– If no procedure is provided in the special law then the provisions of the Code of Criminal Procedure will apply in so far as those are not provided by the special law–
The Depository Act is no doubt a special law. Generally, special laws specify the procedures to be followed in implementing the law. It is also usual for the special law to specify that if no procedure is provided in the special law then the provisions of the Code of Criminal Procedure will apply in so far as those are not provided by the special law. The statute in question is silent as to the procedure regarding cognizance. Applying the general legal principles, and in the light of section 5(2) of the Code, we are of the view that the provisions of the Code of Criminal Procedure will apply. Hence, the Magistrate was competent to take cognizance. The trial will take place before the Court of Sessions. ...Security & Exchange Commission =VS= Md. Sayadur Rahman, (Criminal), 2019 (1) [6 LM (AD) 78]
Section 5(2)-Ain of 2004 has given exclusive power to the Commission to conduct it's cases including appeals in exercise of powers under section 5(2) of the Code read with sections 17, 18 and 33 of the Ain, 2004. Commission is a necessary party in appeals to be filed by the convicts and that the Commission through its prosecution unit has exclusive power to defend the judgments passed by a Special Judges in appeals pending in the High Court Division by accused-persons. Anti- Corruption Commission vs Monjur Morshed Khan, 64 DLR (AD) 124
Section 5(2)- Where offence is one under a special or local law but there is no enactment prescribing any procedure for dealing with the offence, the provisions of the Code shall be followed for such offence. Where a special law creating offences provided a special procedure for dealing with them, the provisions of the Code shall not apply in such cases. Where no such procedure has been provided for, the normal procedure in the Code shall be applicable. The Commission Ain contains complete procedure for inquiry, investi- gation, institution of cases and conducting such cases and there fore; the Code would have no application for the purpose of conducting cases instituted by the Commission. ACC vs Monjur Morshed Khan, 64 DLR (AD) 124
Section 5(2)
The Depository Act is no doubt a special law. Generally, special laws specify the procedures be to followed in implementing the law. It is also usual for the special law to specify that if no pro- cedure is provided in the special law then the provisions of the Code of Criminal Procedure will apply in so far as those are not provided by the special law. The statute in question is silent as to the procedure regarding cognizance. Applying the general legal principles, and in the light of section 5(2) of the Code, the Appellate Division is of the view that the provisions of the Code of Criminal Procedure will apply. Hence, the Magistrate was competent to take cognizance. The trial will take place before the Court of Sessions.
The Appellate Division observed that the Director (Legal) filed the complaint on behalf of the Commission and, therefore, prima facie it appears that the first part of section 16 has not been contravened. The second part of the section specifies that the Court of Sessions only is empowered to hold trial under this law. The facts disclosed do not indicate that the Ma- gistrate who took cognizance is proceeding with the trial of the case. There appears to be a lacuna in the law, inasmuch as the Act does not provide whether the Court of Sessions will take cognizance or the Code of Criminal Procedure would apply and the Magistrate Court would therefore be competent to take cognizance, and then forward the case to the appropriate Court for trial, which would be the Court of Sessions. However, the procedural lacuna is not insurmountable in view of section 5 of the Code of Criminal Procedure (the Code) which provides as follows:- 5. Trial of offences under Penal Code. (1) All offences under the Penal Code shall be investigated, inquired into, tried, and other- wise dealt with according to the provisions hereinafter contained. (2) Trial of offences against other laws. All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Hence, the same provisions of the Code are equally applicable in relation to investigation, inquiry, trial etc. of offences under that special law, unless there is some other enactment regulating the investigation, inquiry, trial etc. of such offence. Security and Exchange Commission -Vs. Md. Sayadur Rahman and another (Criminal) 18 ALR (AD) 57-61
Sections 6 & 7-The new Act has effected a change in the procedural law but it has not affected any vested right of the accused and the prosecution, because the accused had not, in fact, any absolute and vested right of stoppage and release.
In that view of the matter it cannot be said that the appellant had any vested right under the old provision of sub-section (4) of section 339C to be released on the proceeding being stopped. The effect of repeal of the old provision followed by its reenactment will be that in the pending cases the new procedural law will apply because as a general rule alterations in the form of procedure are retrospective in character unless there is some contrary provision in the enactment. In our considered opinion the provision of sub-section (4) of section 339C of the Code of Criminal Procedure as amended by Act No. XLII of 1992 will be applicable to the pending cases. Abdul Wadud vs State 48 DLR (AD) 6.
Section 7
Jurisdiction and function of a Sessions Judge and a Special Judge is quite distinguishable and one cannot exercise the jurisdiction of other though sometimes judge may be the same person:
In the instant case, admittedly, the case is under investigation i.e. at the pre-trial stage and pending before the Chief Metropolitan Magistrate, Dhaka. Metropolitan Magistrate concerned granted bail to the accused respondents during the period of investigation, against which victim-petitioners moved an application before the Metropolitan Sessions Judge, Dhaka, not before the Metropolitan Senior Special Judge, Dhaka. The learned Metropolitan Sessions Judge had dealt with the matter as miscellaneous case as Sessions Judge. Court of Sessions for every session’s division, in particular Dhaka Metropolitan area has been established by the government as per provision of section 7 of Code of Criminal Procedure, whereas Special Judge and Special Court have been set up under the provision of Act of 1958. A Sessions Judge acts under the provisions of Code of Criminal Procedure, whereas the Special Judge acts under the provisions of Act of 1958. Thus, jurisdiction and function of a Sessions Judge and a Special Judge is quit distinguishable and one cannot have the jurisdiction to exercise other jurisdiction though sometimes judge may be a same person. …Minaz Ahmed and another Vs. Arif Motahar and others, (Criminal), 16 SCOB [2022] AD 89
Section 8
Extension of time limit for pending cases — Ordinance No 37 of 1983 extended the period for conclusion of trial of the cases pending on the date of its commencement on 8.8.83 — Charge sheet in the present case was submitted on 16.6.1983 and the case record was in due course forwarded to the Sessions Judge for trial. As such the trial of the case was pending within the meaning of Ordinance No. 37 of 1983 which was intended to save such trials which could not be completed within the time limit specified in Section 339C of the Code of Criminal Procedure The State Vs. Modhu Mirdha 8 BLD (AD) 123.
Section 9-No person shall be appointed a Special Judge unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. A Sessions Judge, an Additional Sessions Judge and an Assistant Sessions Judge are the officers to compose of a Sessions Division. A Sessions Judge in a Sessions Division is appointed under section 9 of the Code and he being the senior most judicial officers of the Sessions Division transfers the cases to Additional Sessions Judges or any other Judges for holding trial of cases as Special Judges of the Sessions Division. Anti-Corruption Commission, Dhaka vs Abdul Azim, 69 DLR (AD) 208
Section 9(2)
Place of sitting of the Court of Sessions—To be directed and notified—
Government have the power under section 9(2) of the Code of Criminal Procedure to direct at what place or places the Court of Sessions shall hold its sitting to try any particular case by special order published in the official Gazettee. There is nothing wrong in the order giving such direction. Syeed Farrok Rahman Vs. Sessions Judge Dhaka and others- 2, MLR (1997) (AD) 212.
Section 9(2)-A special order cannot be restricted to mean a particular situation according to a pre set formula. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 9(2)- Section 9(2) gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 9(2)- The contention that a Court of Sessions cannot have two sitting places is negatived by the very language of the section itself. Sayeed Farook Rahman vs Session Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 9(2)- If there is a special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of the Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Sayeed Farook Rahman vs Sessions Judge, 49 DLR (AD) 157.
Sections 9(3), 29C, 31(4), 409-An Assis- tant Sessions Judge deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, e.g. for hearing appeals, revisions, reference and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abul Kashem vs State 43 DLR (AD) 77.
Sections 9(3), 31(A) and 290
An Assistant Sessions Judge deemed to be an Additional Sessions Judge-its legal incidences.
An Assistant Sessions Judge under the proviso to Sub-section (3) of section 9 of the Code of Criminal Procedure has the power to pass higher sentences except the sentence of death in those Sessions cases which were not hither to triable by him but which are now triable by him by deeming and treating him as an Additional Sessions Judge by virtue of the change brought in section 290 and introduction of section 31 (A) of the Code. An Assistant Sessions Judge shall be deemed to an Additional Sessions Judge for this limited purpose only. He has no power to hear appeals, revisions, references and reviews. Tajul Islam and others -Vs.- Mr. Bill al Hossain (Criminal) 2 ALR (2013)(AD) 205
Sections 10 and 11
Authentication of Publication — Whether authentication by the Additional District Magistrate is valid in law — Having reference to the definition of District Magistrate provided by law. if not in the Act concerned but elsewhere having general application, the provisions of the Code of Criminal Procedure provide that the Additional District Magistrate may perform the functions of the District Magistrate — Printing Press and Publications (Declaration and Registration) Act, 1973, Ss. 12, 23 and 24 — General Clauses Act (X of 1897) S 19 Waliul Bari Chowdhury Vs. District Magistrate, Kushtia and others 6 BLD (AD) 284.Ref. AIR 1948 (All) 129; (1956) 3 All ER 939.
Section 18(2)
Appointment of Additional Chief Metropolitan Magistrates
When Government allocated function under sub-section (7A) of section 167 Cr.P.C. to the Additional Chief Metropolitan Magistrate and he passed the impugned order of revival, such an order cannot be held to be illegal. Government of Bangladesh Vs. Shah Alam, 15 BLD (AD) 108
Sections 25 and 26-The Appellate Division held that section 25 is broadly worded and it absolutely excludes from evidence against the maker of the same made to a police officer under any circums- tances. Considering the object of the section, the history of the previous legislation and the conduct of the police generally, the Indian Law Commission report shows that 'the police have a tendency to extract confessions by inducement, undue influence, torture and oppression and thus with a view to pre- venting the abuse of their power sections 25 and 26 have been incorporated in the Act, not that confession to police is not relevant'. Section 26 re-enacts the provisions of section 149 of the Code of Criminal Procedure, 1861, with some alterations. This section goes further what the preceding section makes a confession inadmissible that a confession made by a person while he is in custody of the police is inadmissible unless made in the im- mediate presence of a Magistrate. It is because a person in the custody of the Police is presumed to be under their influence and the presence of a Magistrate is a safe-guard and guarantees the confession as not made by influence. Section 27 is an exception to sections 25 and 26, that is to say, a statement made by an offender in police custody which distinctly relates to the fact discovered is admissible against him. Mufti Abdul Hannan Munshi alias Abul Kalam and another -Vs. The State (Criminal) 19 ALR (AD) 126-141
Sections 26 , 283 and 307
read with
Code of Criminal Procedure [V of 1898]
Section 561 A —No complaint can be made directly without seeking redress to the Labour Court for non-payment of service benefits.
Mere non-payment of termination benefits or illegal termination of a worker is not an offence as evident from section 26. It will be an offence if after illegal termination, the Labour Court directed the owner/ employer to pay the termination benefits or re-employ him and if the owner/ employer disobeys the direction it will be a penal of-fence under section 283 and not otherwise.
S.M. Zahidul Islam (Zahid) Bangladesh Legal Aid and Services Trust (BLAST) represented by its Advisor Mr. S.M. Rezaul Karim -Vs.- Syed Ahmed Chowdhury and others. (Criminall) 11 ALR (AD) 84-88
Section 31-As a matter of principle, it is not proper that by instalments the question of sentence should be considered once in the High Court S Division and again in the Appellate Division.
The learned Single Judge of the High Court Division while disposing of the criminal appeal was in seisin of the case both on fact and law and as such, he was competent to reduce the sentence. We do not think that it will be proper in the facts and circumstances of the present case to consider afresh the question of sentence on the ground of old age alone which consideration was there in the High Court Division. Mawlana Abdul Hye vs State, Hatem Ali Howlader vs State 51 DLR (AD) 65.
Sections 33(1) and 386(1)
Whether a Magistrate can order for imprisonment in default of payment of fine when the offence is punishable with fine only — Section 33(1) authorises the Magistrate to award such terms of imprisonment in default of payment of fine as is authorized by law in case of such defautl — Where the offence is punishable with imprisonment as well as fine and where the offence is punishable only with fine, the imprisonment in default of payment of fine shall be simple and the maximum term is six months — All courts including the court of the Magistrate got power to direct recovery of fine when the offence is punishable only with fine by any of the three methods, such as by issuing distress warrants or by referring the matter to the Collector or by committing the offender to the prison The State Vs. Abul Kashem 5 BLD (AD) 166
Section 35A-Section 35A of the Code is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discretionary power of the court. It cannot he applicable in respect of an offence which is punishable with death. Though the word 'only' is used in section 35A, the legislature without considering section 401 of the Code and section 53 of the Penal Code has inserted the word 'only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the Government only. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214
Section 35A - The period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence.
Sentence of "imprisonment for life" as used in Bangladesh is utterly a misnomer; indeed. It appears to be an erroneous interpretation. The way it has been interpreted, the word "life" does not bear its normal linguistic meaning. In other words, a person sentenced imprisonment for life does to not necessarily spend his life in prison, although section 45 of the Penal Code defines "Life" as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30(thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22½ years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial. Hence, the sentence of imprisonment for life imposed at the time of delivery of judgement appears to be a lenient sentence and may in the minds of some appear to be not a proper sentence, especially when some horrific facts are disclosed in evidence. Rokia Begum -Vs. The State 3 ALR(2014)(1)(AD) 148
Section 35A-The Appellate Division is inclined to give the benefit of section 35A of the Code of Criminal Procedure to accused-Dr. Nurul Hoque, i.e. the period during which he suffered in jail hajat be- fore the order of conviction and sentence passed by the learned Sessions Judge shall be deducted from his sentence of imprisonment. The State Vs. Tajel Sheikh @Md. Tajul Sheikh and others (Criminal) 19 ALR (AD) 87-94
Section 35A-It is now settled that the non-examination of public witnesses is not a legal ground to disbelieve the prosecution case.
The Appellate Division observed that the High Court Division was of the view that no public witness was examined over the recovery of the arms. It is now settled that a public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law. It is a presumption of fact. If the recovery and seizure are made in accordance with law, it is difficult to disbelieve the evidence of the seizing officer unless inherent infirmities are revealed in course of cross examina- tion. Therefore, the onus lies upon the ac- cused to show that no such arm was recov- ered from his possession. The State Vs. Md. Ali Reza (Criminal) 13 ALR (AD) 65-68
Section 35A
Nari O Shishu Nirjatan Daman Ain, 2000
Sections 8/30 r/w
The Penal Code, 1860
Sections 302/201/34
The Code of Criminal Procedure, 1898
Section 35A
Where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death– All the appeals are dismissed with modification of sentence. The sentence of death of the appellants, namely, Noor Mohammad alias Kalu alias Kalu Chor alias Kalu Dakat, son of Montaz Ali Momtaz Ali, of Village-Kutipara, Salanga, Police Station-Salanga, District-Sirajgonj (in Criminal Appeal No.4 of 2013); Md. Ershad Ali @ Ershad, son of Md. Yousuf Ali Mondal and Abul Kalam @ Kalam, son of late Kuddus Ali, both of Village-Bormohoni Dhakhinpara, Police Station-Salanga, District-Sirajgonj (in Jail Appeal No.9(a) of 2021); and Md. Md. Ashraful Islam @Kana Rintu@Mintu, son of Md. Sohorab Ali Mondal, of Village-Bormohoni Dhakhinpara, Police Station-Salanga, District-Sirajgonj (in Jail Appeal No.14 of 2021) is commuted to imprisonment for life and also to pay a fine of Tk.20,000.00(twenty thousand) each, in default, to suffer rigorous imprisonment for 6(six) months more. However, they will get the benefit of section 35A of the Code of Criminal Procedure in calculation of their sentence and other remission as admissible under the Jail Code. .....Noor Mohammad @Kalu @Kalu Chor @Kalo Dakat =VS= The State, (Criminal), 2022(1) [12 LM (AD) 401]
Section 35(A)
Commuted to imprisonment for life and get the benefit of section 35(A) of the Cr.PC.– It appears that the appellants Sentu, Mamun and Azanur are in the condemned cell for more then 12(twelve) years suffering the pangs of death. It was held in the case of Nazrul Islam (Md) vs. State reported in [66 DLR (AD) 199] that, ”Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death.” In view of the decision cited above as well as the circumstances of this case, Appellate Division is of the view that justice would be sufficiently met if the sentence of death of the appellants Sentu, Mamun and Azanur be commuted to one of imprisonment for life. ...Shukur Ali(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 128]
Section 35(A)
Code of Criminal Procedure, 1898
Section 35A
Nari O Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995
Section 6(4)
Modified sentence with get the benefit of section 35A of the Cr.PC.– It is found that the appellant Anowar Hossain has been in the condemned cell for more that 22 (twenty two) years suffering the pangs of death. There are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death. The appeal is dismissed and the sentence of the appellant is commuted to imprisonment for life and to pay a fine of Tk.5,000.00, in default, to suffer imprisonment for 15(fifteen) days more. The appellant shall get the benefit of section 35A of the Code of Criminal Procedure, 1898 and remission as per law. ...Anowar Hossain =VS= The State, (Criminal), 2021(2) [11 LM (AD) 150]
Section 35(A)
Code of Criminal Procedure, 1898
Section 35(A)
Penal Code, 1860
Sections 302/114/34
Commuted to imprisonment for life– It was held in the case of Nazrul Islam (Md) vs. State reported in [66 DLR (AD) 199] that, ”Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death.” In view of the decision cited above as well as the circumstances of this case, Appellate Division is of the view that justice would be sufficiently met if the sentence of death of the appellant Mofazzal Hossain Khan @ Mofa be commuted to one of imprisonment for life. He will get the benefit of section 35(A) of the Code of Criminal Procedure, 1898 in calculation of his sentence. ...Mofazzal Hossain Khan @ Mofa =VS= The State, (Criminal), 2021(2) [11 LM (AD) 167]
Section 35(A)
Modification of sentence with benefit of section 35(A) of the Cr.PC– When the matter was heard by the High Court Division the convict had been in the condemned cell for less than 7(seven) years, and hence the plea of commutation was rejected. However, the convicts have now been in the condemned cell for more than a decade and suffered due to no fault of them. Thus, the length of period by now can be taken as a circumstance. Such being the case, Appellate Division is of the view that justice would be met if we commute the sentence to life imprisonment instead of death.
Both the appeals are dismissed with modification of sentences. The sentences of death of both the condemned appellants are commuted to imprisonment for life and also to pay a fine of Tk.50,000/- (Taka fifty thousand) only each, in default, to suffer rigorous imprisonment for 02(two)years more. They will get the benefit of section 35(A) of the Code of Criminal Procedure in calculation of their sentences. The concerned Jail authority is directed to shift both the appellants to the normal jail from the condemned cell forthwith. ...Runzu Sarder =VS= The State, (Criminal), 2021(2) [11 LM (AD) 180]
Section 35(A)
Sentence of death is commuted to imprisonment for life with will get the benefit of section 35A of the Cr.PC– The appellant’s two wives came face to face for the first time which led to an explosive atmosphere. The second wife left the fight which then continued into the night between the appellant and his first wife. There is no evidence that the appellant is otherwise a violent person or a threat to society. There is no previous record of any criminal activity. Appellate Division is of the view that ends of justice would be best served if the sentence of death is commuted to one of imprisonment for life and also to pay a fine of Tk.5,000/-(five thousand), in default to suffer rigorous imprisonment for 15 (fifteen) days more. He will get the benefit of section 35A of the Code of Criminal Procedure in the calculation of his sentence. ...Sree Swapan Kumar Biswas =VS= The State, (Criminal), 2021(2) [11 LM (AD) 211]
Section 35(A)
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Sections 302/34
Commuting a sentence of death– The youth of the person is usually taken into consideration along with other extenuating circumstances in order to commute a sentence of death passed on such a person– In the case of The State vs. Tasiruddin (1961)13 DLR 203, Morshed,J observed that in the case of extreme youth, normally, of persons in their early or middle teens, youth itself is invariably a sufficient ground for commuting a sentence of death to transportation for life(now life imprisonment). In a very rare case a youth in middle or later teens, is condemned to death. It is only in exceptional circumstances and in cases of extreme depravity that a teen-ager is awarded a death sentence. In other cases when a person is of a higher age but quite in early youth, the question of his age alone is not sufficient to justify a commutation of the sentence, and the question, namely, the youth of the person is usually taken into consideration along with other extenuating circumstances in order to commute a sentence of death passed on such a person.
This criminal appeal is dismissed and the sentence of the condemned-prisoner is commuted to imprisonment for life and to pay a fine of Tk.5000/-, in default, to suffer imprisonment for 15 days more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence. ...Samaul Haque Lalon =VS= The State, (Criminal), 2021(2) [11 LM (AD) 315]
Section 35A
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Sections 302/120(kha)/34
Commute the sentence of death penalty– The severe torment and prolonged agony may be considered as an extenuating circumstance and in view of the above fact of his lengthened misery Appellate Division is inclined to modify the order of sentence and commute the sentence of death penalty to that of imprisonment for life. ...Alaich Mahmud@Ear Mahmud@Mohammad Mia =VS= State, (Criminal), 2021(2) [11 LM (AD) 323]
Section 35A
Code of Criminal Procedure, 1898
Sections 35A, 164
Penal Code, 1860
Section 302
Commute the sentence of death to imprisonment for life– Appellant has suffered in the condemned cell for about 12 years and has been suffering for a much longer period in custody, since he faced the trial. He has no previous conviction according to the charge sheet and does not pose any threat to society.
According to the confessional statement, the appellant out of grudge dealt the blows aimed at the head of Khadiza Begum (PW2) but that accidentally struck the head of victim Farzana and as a result of that the minor child died instantly. Taking that into consideration and all other aspects Appellate Division is of the opinion to commute the sentence of death to imprisonment for life. Appellant will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. ...Masum Billah =VS= The State, (Criminal), 2021(2) [11 LM (AD) 395]
Section 35A
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Section 302
Commuting the sentence of death to imprisonment for life– Appellate Division finds also that the accused had married the victim out of a love affair and, hence, his anger would be more acute if he suspected that his wife was unfaithful. This, Appellate Division finds would have been the reason for the incident which took place after midnight. Moreover, this Division bears in mind that the couple have a child who has lost one parent and the other stands on the gallows.
In the facts and circumstances discussed above, Appellate Division is of the view that the conviction under section 302 of the Penal Code was correct. However, this Division feels that this is a fit case for commuting the sentence of death to imprisonment for life. Appellant will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and also benefit of remission. ...Nazrul Islam(Md.) =VS= Deputy Commissioner(DC), Dhaka, (Criminal), 2021(2) [11 LM (AD) 403]
Section 35A
Code of Criminal Procedure, 1898
Section 35A
আদালত কর্তৃক তথ্য-প্রযুক্তি ব্যবহার আইন, ২০২০
Sections 3, 4
Penal Code, 1860
Sections 302/34
The present criminal appeal and jail appeal were heard by this Division using virtual means under the provisions of the আদালত কর্তৃক তথ্য-প্রযুক্তি ব্যবহার আইন, ২০২০| The appellant has suffered in the condemned cell for about 13 years and has been suffering for a much longer period in custody, since he faced the trial. He has no previous conviction according to the charge sheet and does not pose any threat to society.
Appellate Division finds substance in the submissions of the learned Counsel for the appellant. Hence, this criminal appeal is dismissed. The sentence of death of the appellant, namely Fazlul Haque Talukder, son of Abdul Aziz Talukder of Village:Poik Khali, Police Station-Bhandaria, District-Pirojpur is commuted to imprisonment for life, and also to pay a fine of Tk. 20,000/-(twenty thousand), in default to suffer rigorous imprisonment for 6(six) months more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. ...Fazlul Haque Talukder =VS= Deputy Commissioner(DC), Barishal, (Criminal), 2021(2) [11 LM (AD) 418]
Section 35A
Code of Criminal Procedure, 1898
Section 35A
Penal Code, 1860
Section 302
Evidence Act, 1872
Section 106
Although there was no eyewitness in support of the prosecution case, the burden cast upon the appellant to explain the death of his wife while she was in his custody has not been exonerated– In view of the facts that there is no previous record of any criminal activity of the appellant, he has two children who obviously care for him enough not to appear in Court to depose against him, and that the sentence of death would render his two children to become orphans, Appellate Division is inclined to commute the sentence of death to imprisonment for life. ...Golam Rabbani(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 422]
Section 35A
The Penal Code, 1860
Sections 302/34/201
The Code of Criminal Procedure, 1898
Section 35A
Modification of sentence– Where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death– The appellant is in the condemned cell for more then 15(fifteen) years suffering the pangs of death. It was held in the case of Nazrul Islam (Md) vs.State reported in 66 DLR (AD) 199 that, ”Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death.” In view of the decisions cited above as well as the circumstances of this case, Appellate Division is of the view that justice would be sufficiently met if the sentence of death of the appellants be commuted to one of imprisonment for life. .....Monir Ahmed =VS= The State, (Criminal), 2022(1) [12 LM (AD) 413]
Section 35A
The appellant was rightly found guilty by both the Courts below but we think that justice would be met if the sentence of death is commuted into imprisonment for life as the appellant is in pang of death since pronouncement of the trial Court and subsequent affirmation by the High Court Division and as such the sentence of death is commuted into imprisonment for life with a fine of Tk. Tk.10,000/-, in default, to suffer rigorous imprisonment for 3(three) months more. The appellant will get the benefit of section 35A of the Code of Criminal Procedure. ...Ariful Islam Shimul =VS= The State, (Criminal), 2021(2) [11 LM (AD) 577]
Section 35(A)
The Penal Code, 1860
Sections 302/201/34
The Code of Criminal Procedure, 1898
Section 35(A)
The sentence of death is commuted into imprisonment for life– In view the facts and circumstances of the case it is found that the trial court was correct in its decision convicting the appellant and subsequently High Court Division affirmed the same and Appellate Division also gives their opinion that the appellant was rightly found guilty by both the courts below but this Division thinks that justice would be made if the sentence of death is commuted into imprisonment for life as the appellant is in pang of death since pronouncement of the trial court and subsequent affirmation by the High Court Division and as such the sentence of death is commuted into imprisonment for life. The appellant will get the benefit of section 35(A) of the Code of Criminal Procedure in calculation of his sentence. Jail Petition No.19 of 2015 is disposed of in the light of the judgment delivered in the Criminal Appeal No.59 of 2014. .....Mohammad Ali @ Sakil =VS= The State, (Criminal), 2022(1) [12 LM (AD) 444]
Section 35A
The Penal Code, 1860
Sections 302
The Code of Criminal Procedure, 1898
Section 35A
Where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death– The age of the appellant at the time of commission of offences and the circumstances of this case, Appellate Division is of the view that justice would be sufficiently met if the sentence of death of the appellant Md. Rafiqul Islam alias Rafique be commuted to one of imprisonment for life. The conviction of the appellant, Md. Rafiqul Islam alias Rafique, son of Entaj Ali Mondal of Village-Golabari, Police Station-Bhuapur, District-Tangail. At present: Security Guard, Shild Bangladesh Ltd. 153, Monipuripara, Police Station-Tejgaon, District-Dhaka under section 302 of the Penal Code is upheld, however his sentence of death is commuted to imprisonment for life and also to pay a fine of Tk.10,000.00 (ten thousand), in default, to suffer rigorous imprisonment for 06 (six) months more. He will get the benefit of section 35A of the Code of Criminal Procedure, 1898 in calculation of his sentence. .....Rafiqul Islam(Md.) alias Rafique =VS= The State, (Criminal), 2022(1) [12 LM (AD) 448]
Section 35A
The Penal Code, 1860
Section 302/34/109
The Code of Criminal Procedure, 1898
Section 35A
Having considered and discussed above Appellate Division has no hesitation to hold that the prosecution has been able to prove the charge under section 302/34/109 of the Penal Code brought against the present condemned prisoners beyond doubt and the trial Court as well as the High Court Division rightly found them guilty for committing such offences.
Considering the role of condemned prisoners Setabuddin and Shahab Uddin alias Saman in commission of offence as well as the factum that they were not apprehend at the place of occurrence like two other condemned prisoners, Appellate Division is of the view that justice would be best served if the sentence of death is commuted one to imprisonment for life. Accordingly, Setabuddin and Saman alias Samad is sentenced to imprisonment for life with a fine of Tk.50,000/- in default to suffer rigorous imprisonment more. The appellants Setabuddin and Saman alias Samad will get the Benefit of section 35A of the Code of Criminal Procedure in calculation of their sentence and other remission as admissible under the Jail Code. .....Abdul Gafur(Md.) alias Milon =VS= The State, (Criminal), 2022(1) [12 LM (AD) 461]
Section 35A
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Section 35A
Modification of sentence– Where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death– Appellate Division is of the view that the prosecution could prove beyond reasonable doubt that the appellants have committed the offence of murder of Mohiful in furtherance of their common intention punishable under Sections 302/34 of the Penal Code, 1860. The trial Court has correctly convicted the appellants with murder and sentenced them to death under Sections 302/34 of the Penal Code, 1860 as well as the High Court Division has correctly confirmed the conviction and sentence passed by the Sessions Judge, Joypurhat. The sentence of death of the appellants namely; Md. Al-Amin alias Badsha alias Khalek, son of Thandu Pramanik alias Saydur Ali, of Village-Upashahar Rest House Para, P.O-Bogra, District-Bogra; Faraz Uddin alias Jeebon, son of late Azmat Ullah Pramanik of Village-Debchandi, P.O-Shibgonj, District-Bogra; Md. Sajib, son of Zahirul Islam, of Village-Atapara, P.O-Bogra, District-Bogra are commuted to imprisonment for life and also to pay a fine of Tk.50,000.00(fifty thousand) each, in default, to suffer rigorous imprisonment for 2(two) years more. .....Al-Amin(Md.) @Badsha @Khalek =VS= The State, (Criminal), 2022(1) [12 LM (AD) 470]
Section 35(A)
The Penal Code, 1860
Sections 302/34/109
The Code of Criminal Procedure, 1898
Section 35(A)
Lastly with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of Appellate Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death. The circumstances of this case, this Division is of the view that justice would be sufficiently met if the sentence of death of the appellants be commuted to one of imprisonment for life. All the appeals are dismissed. All the appellants will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. .....Rafiqul Islam Sheikh =VS= The State, (Criminal), 2022(1) [12 LM (AD) 484]
Section 35A
Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003)
Sections 11(Ka)/30
Code of Criminal Procedure
Section 35A
Imprisonment for life instead of capital punishment– The killing of the victim was certainly terrible, however, there appears a few Mitigating Circumstance in the instant case, and these may be described as follows-
i) the deceased left 02 kids alive of 05 and 01 years of age. If the appellant, that is the father of the said kids executed these kids of the circumstances will become orphans;
ii) the present appellant detained in the condemn cell of jail for almost 14 years;
iii) there is no Previous Conviction or Previous Record (PC/PR) of the offender;
iv) in the present case the impression of offence on society, state etc. are limited to a certain locality and no such cross country effect was recorded in any way;
v) absence of any material to believe that if allowed to live he poses a grave and serious threat to the society.
Appellate Division opines that though there is no uncertainty that the appellant has committed a repulsive crime, even so for this, this Division believes that internment for life will serve as sufficient punishment and penitence for his actions. This Division believes that there is hope for reformation, rehabilitation. Hence, this Division is inclined to impose imprisonment for life instead of capital punishment. ...Anwar Sheikh(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 344]
Sections 35A & 401
The Constitution of Bangladesh, 1972
Article 49 read with
The Code of Criminal Procedure, 1898
Sections 35A & 401 read with
The Penal Code, 1860
Sections 45 ,53 , 57 & 302 read with
The Bengal Jail Code, volume 1(Part I)
Chapter XXI Rule 751 (f)
End of convicts life as the alternative to death sentence can only be exercised by the High Court Division and this court and not by any other inferior tribunal or the executive. Accordingly, we conclude our opinion as under:-
(1) A sentence of death awarded to an offender under section 302 of the Penal Code is the rule and life imprisonment is an exception. The court may commute death sentence to life imprisonment of a prisoner on extenuating circumstances and in that case it must assign reasons therefor.
(2) Life imprisonment within the meaning of section 53 read with section 45 of the Penal Code means imprisonment for rest of the life of the convict.
(3) If the High Court Division or this court commutes a sentence of death to imprisonment for life and direct that the prisoner shall have to suffer rest of his natural life, such type of cases would be beyond the application of remission.
(4) Section 57 of the Penal Code is only for the purpose of working out the fractions of the maximum sentence fixed for the principal offence, that is to say, if such provision is not made, it would have been impossible to work out the fractions of an indefinite term.
(5) Remission contained in Chapter XXI of the Bengal Jail Code, volume 1 (Part I) are administrative instructions regarding various remissions.
(6) If an offender pleads guilty at the initial stage of the trial of the case in respect of an offence punishable with death or imprisonment for life, the court/tribunal shall take lenient view on the question of awarding sentence, but in such cases, the court shall ascertain as to whether the offender pleading guilty upon understanding the offence charged with against him before accepting such plea. Provided however that the court is not bound to accept all pleas of guilty and award the minimum sentence.
(7) In exercise of power under article 49 of the constitution the President has power to grant pardon, reprieves and respite and to remit, suspend or commute any sentence even after the commutation of sentence by this court or the High Court Division. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]
Section 35A
The Penal Code, 1860
Sections 45, 53, 55, 57 and
The Code of Criminal Procedure
Section 35A
Imprisonment for life 30 years– The review petition is disposed of with the following observations and directions by majority decision:
1. Imprisonment for life prima-facie means imprisonment for the whole of the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure.
3. However, in the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code of Criminal Procedure.
Considering the facts and circumstances, the sentence awarded to the review petitioner is modified to the extent that he is sentenced to suffer imprisonment for life and to pay fine of taka 5000/-, in default, to suffer rigorous imprisonment for 2(two) months more. (Majority view: Per Hasan Foez Siddique, J, Author Judge). ...Ataur Mridha =VS= The State, [10 LM (AD) 527]
Section 35A
Nari-O-Shishu Nirjatan Daman Ain-2000 (Amended in 2003)
Section 11 (Ka)/30
The Penal Code, 1860
Section 302
The Code of Criminal Procedure, 1898
Section 35A
FIR is not a substantive evidence, it can be gathered from the statements made therein that the relationship between the husband and the wife was bitter because of demand of dowry by the husband. It is alleged in the FIR that Tk. 30,000/-was paid to the condemned-appellant at the time of marriage. ––Having taken into consideration all the facts and circumstances of the case, we are inclined to commute the sentence of death to imprisonment for life. .....Md. Mamun@ Mamun Ar Rashid =VS= The State, (Criminal), 2023(2) [15 LM (AD) 180]
Section 35A
The Evidence Act, 1872
Section 8
The Penal Code, 1860
Section 302
The Code of Criminal Procedure, 1898
Section 35A
Sentence commuted from death to imprisonment for life–– On the day of occurrence the appellant absconded and his trial was held and conviction and sentence was confirmed by the High Court Division while he was still on the run. When he was arrested, by then long eighteen years had passed. This is a relevant fact under section 8 of the Evidence Act unerringly pointing to the guilt of the appellant. Appellate Division is of the view that the sentence of the appellant may be commuted from death to imprisonment for life. .....Anowar Hossain(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 316]
Section 35A
Having gone through substituted section 35A of the Code of Criminal Procedure, it appears that there is no scope to say that the power conferred on the Court is a discretionary power. The language used in amended section 35A is clear and unambiguous and that the Court cannot disregard the intention of the legislature expressed in plain language and is to deduct the period of actual detention from imprisonment for life prior to his conviction. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
Section 35A
Section 35A of the Code of Criminal Procedure is applicable to convict sentenced to life imprisonment:
Thus, the convicts who are convicted and sentenced of the offences not punishable only with death are entitled to get the benefit of section 35A of the Code of Criminal Procedure in respect of the period of their imprisonment which was spent during investigation or inquiry or trial in a particular case. To deny the benefit of section 35A of the Code of Criminal Procedure the convict sentenced to life imprisonment would be to withdraw the mandatory application of a benevolent statutory provision. (Majority view) (Per Mr. Justice Hasan Foez Siddique, J) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
Section 35A
A whole life order can be imposed in serious case:
If the Court, considering the facts and circumstances of the case and gravity of the offence, seriousness of the crime and general effect upon public and tranquillity, is of the view that the convict should suffer imprisonment for life till his natural death, the convict shall not be entitled to get the benefit of section 35A of the Code of Criminal Procedure. In the most serious cases, a whole life order can be imposed, meaning life does mean life in those cases. In those cases leniency to the offenders would amount to injustice to the society. In those cases, the prisoner will not be eligible for release at any time. The circumstances which are required to be considered for taking such decision are: (1) surroundings of the crimes itself; (2) background of the accused; (3) conduct of the accused; (4) his future dangerousness; (5) motive; (6) manner and (7) magnitude of crime. This seems to be a common penal strategy to cope with dangerous offenders in criminal justice system. (Majority view) (Per Mr. Justice Hasan Foez Siddique, J) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
Section 35A
A convict sentenced to imprisonment for life also gets benefit of section 35A of CrPC:
A Court cannot take away the benefit given to a citizen by law. When a law is enacted by a democratic Parliament every citizen is duty bound to abide by it. Equally, no Court of law can ignore a mandatory provision of a validly enacted statute without first striking down that provision as ultra vires the Constitution. Accordingly, in the case of any convict sentenced to any term of imprisonment, including imprisonment for life, the Court passing sentence shall deduct the total period spent by the convict in custody in connection with that offence before the date of his conviction, as provided by section 35A of the said Code. (Minority View) (Per Mr. Justice Muhammad Imman Ali J:) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
Sections 35A
In view of the facts and circumstances, the discussion made above the review petition is disposed of with the following observations and directions:
1. Imprisonment for life prima-facie means imprisonment for the whole of the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure.
3. However, in the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code of Criminal Procedure. (Summary of the majority view) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
Section 35A
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure
Section 35A
Sentence commuted from death to imprisonment for life–– The judgment and order of conviction awarded by the trial Court and affirmed by the High Court Division is hereby maintained. However, the sentence of the appellants is commuted from death to one of imprisonment for life and they are ordered to pay a fine of Tk.50,000/- each, in default, to suffer rigorous imprisonment for 1 (one) year more. The appellants shall get benefit of section 35A of the Code of Criminal Procedure in calculation of their sentence and other remissions as admissible under the Jail Code. ––Learned Senior Counsel, lastly submits that considering the facts and circumstances of the case and that the appellants are in death cell for about 14 years the sentence awarded to them may be commuted to imprisonment for life. Appellate Division finds force in the submissions. .....Mehedi Hasan(Md.) alias Rajib =VS= The State, (Criminal), 2023(1) [14 LM (AD) 397]
Section 35A
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure
Section 35A
Youth of the condemned-prisoner at the time of commission of the offence–– It appears from documents on record that the condemned prisoner was apprehended in connection of the present case on 20.04.2007 and since then he remained in normal cell till delivery of the verdict by the trial Court. He was sent to condemned cell after pronouncement of the judgment and order of conviction and sentence by the trial Court on 08.10.2009, which indicates that he has suffered long pangs of the death in the condemned cell for around 13[thirteen] years and more than 3[three] years in normal cell. Long suffering in the condemned cell as well as normal cell may, sometimes, take into consideration of punishment to be commuted relying upon the facts and circumstances of the case as noted above. ––It is also evident that the condemned prisoner was twenty years old at time of occurrence and arrest. Appellate Division has given Appellate Division’s anxious thought over the duration of suffering both in the normal cell as well as condemned cell and age of the condemned prisoner and the facts and circumstances of the case. ––This criminal appeal is dismissed with modification. However, the sentence of death of the condemned prisoner is commuted to imprisonment for life and also to pay a fine of taka 5,000.00, in default, to suffer rigorous imprisonment for 1[one] year more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence. .....Montu Rahman(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 413]
Section 35A
Meaning of life sentence:
The way it has been interpreted, the word “life” does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22½ years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial. …Rokia Begum Vs. The State, (Criminal), 4 SCOB [2015] AD 20
Sections 35A and 401 read with Penal Code [XLV of 1860]
Sections 53 and 54-In case of an of- fence punishable with death or impri- sonment for life. An accused person can- not claim the deduction of the period in custody prior to the conviction as of right.
The Appellate Division held that section 35A of the Code of Criminal Procedure is not applicable in case of an offence punish able with death or imprisonment for life. An accused person cannot claim the de- duction of the period in custody prior to the conviction as of right. It is a discretionary power of the court. It cannot be applicable in respect of an offence which is punisha- ble with death. Though the word 'only' is used in section 35A, the legislature without considering section 401 of the Code of Criminal Procedure and section 53 of the Penal Code has inserted the word 'only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the gov- ernment only. Ataur Mridha @ Ataur -Vs. The State (Criminal) 9 ALR (AD) 162-188
Sections 35A and 401-See also reported in Ataur Mridha @ Ataur -Vs.- The State (Criminal) 9 ALR (AD) 162- 188
Section 54
In clause ‘Firstly’ of section 54 the words ‘credible information’ and ‘reasonable suspicion’ have been used relying upon which an arrest can be made by a police officer. These two expressions are so vague that there is chance for misuse of the power by a police officer, and accordingly, we hold the view that a police officer while exercising such power, his satisfaction must be based upon definite facts and materials placed before him and basing upon which the officer must consider for himself before he takes any action. It will not be enough for him to arrest a person under this clause that there is likelihood of cognizable offence being committed. Before arresting a person out of suspicion the police officer must carry out investigation on the basis of the facts and materials placed before him without unnecessary delay. If any police officer produces any suspected person in exercise of the powers conferred by this clause, the Magistrate is required to be watchful that the police officer has arrested the person following the directions given below by this court and if the Magistrate finds that the police officer has abused his power, he shall at once release the accused person on bail. In case of arresting of a female person in exercise of this power, the police officer shall make all efforts to keep a lady constable present. …Bangladesh & ors Vs. BLAST & ors, (Civil), 8 SCOB [2016] AD 1
On the plea of terrorism we cannot give a blank cheque to the law enforcing agencies to transgressing the fundamental rights of the citizens of the country. It should be borne in mind that a terrorist does not lose his fundamental rights even after commission of terrorist activities and there are laws for punishment of his crime, but he should not be deprived of his precious rights preserved in the constitution. …Bangladesh & ors Vs. BLAST & ors, (Civil), 8 SCOB [2016] AD 1
Even if after investigation the police officer does not find any complicity of accused person, the Magistrate is not bound to accept the police report. It may direct further inquiry or further investigation over the death of the victim if he finds that the death is homicidal in nature. The power of the Magistrate is not circumscribed by any condition. The Magistrate is not bound to accept the police report. …Bangladesh & ors Vs. BLAST & ors, (Civil), 8 SCOB [2016] AD 1
Section 54 and 167
Code of Criminal Procedure, 1898
Section 54 and 167:
Special Powers Act, 1974
Section 3:
Guide lines for the Law Enforcement Agencies:
(i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum.
(ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and the place in custody.
(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcing officer to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is staying.
(iv) Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the law enforcing officer’s custody or in the judicial custody under section 167(2) of the Code.
(v) No law enforcing officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act, 1974.
(vi) A law enforcing officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.
(vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor.
(viii) If the person is not arrested from his residence or place of business, the law enforcing officer shall inform the nearest relation of the person in writing within 12 (twelve) hours of bringing the arrestee in the police station.
(ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.
(x) When any person is produced before the nearest Magistrate under section 61 of the Code, the law enforcing officer shall state in his forwarding letter under section 167(1) of the Code as to why the investigation cannot be completed within twenty four hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary B.P.Form 38 to the Magistrate.
Guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of an offence:
(a) If a person is produced by the law enforcing agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per section 167(2) of the Code, the Magistrate or the Court, Tribunal, as the case may be, shall release him in accordance with section 169 of the Code on taking a bond from him.
(b) If a law enforcing officer seeks an arrested person to be shown arrested in a particular case, who is already in custody, such Magistrate or Judge or Tribunal shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case and if that the prayer for shown arrested is not well founded and baseless, he shall reject the prayer.
(c) On the fulfillment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person as required under section 167(2) and if the case is exclusively triable by a court of Sessions or Tribunal, the Magistrate may send such accused person on remand under section 344 of the Code for a term not exceeding 15 days at a time.
(d) If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above.
(e) The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report disclose that the arrest has been made for the purpose of putting the arrestee in the preventive detention.
(f) It shall be the duty of the Magistrate/Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under section 167 of the Code.
(g) If the Magistrate has reason to believe that any member of law enforcing agency or any officer who has legal authority to commit a person in confinement has acted contrary to law the Magistrate shall proceed against such officer under section 220 of the Penal Code.
(h) Whenever a law enforcing officer takes an accused person in his custody on remand, it is his responsibility to produce such accused person in court upon expiry of the period of remand and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct for the examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhumation of the dead body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place.
(i) If there are materials or information to a Magistrate that a person has been subjected to ‘Nirjatan’ or died in custody within the meaning of section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of ‘Nirjatan’ and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-moto under section 190(1)(c) of the Code without awaiting the filing of a case under sections 4 and 5 and proceed in accordance with law. …Bangladesh & ors Vs. BLAST & ors, (Civil), 8 SCOB [2016] AD 1
Section 54
The Foreigners Act, 1946
Section 14 r/w
The Constitution of Bangladesh, 1972
Article 26, 27 and 47 r/w
The Code of Criminal Procedure, 1898
Section 54
Since both the appellants filed application admitting that being junior police officer they could not dealt with the matter in appropriate manner and tenders unconditional apology and also considering their entire service career, Appellate Division is inclined to condone the compensation amount of Tk.5000/- as directed by the High Court Division to pay by each of the appellant nos.1 and 2 to the petitioner. The police personnels should keep in mind that the police force being specially trained as disciplined force and enjoys extra benefits and protection are maintained by the Government with tax money of the public for the purpose to serve the public as such the police personnels should be more cautious to maintain dignity of their profession as well as protect human rights of the citizens alongwith other rights enshrined in the constitution. The applications for condoning the compensation money are allowed. The appellants are exonerated from paying the compensation money. .....Abdul Gaffar (OC, Tejgaon PS) =VS= Md. Mohammad Ali, (Civil), 2022(1) [12 LM (AD) 51]
Sections 54, 167
Recommendation to amend sections 54, 167–
On a close look into the judgment of the High Court Division it cannot be said that it has directed the government to legislate and/or amend the existing sections 54, 167, 176, 202 of the Code and some other provisions of the Penal Code. It noticed that the police officers taking the advantage of the language used in section 54 are arresting innocent citizens rampantly without any complaint being filed or making any investigation on the basis of complaint if filed and thereby the fundamental rights guaranteed to a citizen under articles 27, 30, 31, 32, 33 and 35 of the constitution are violated. It has observed that no person shall be subjected to torture or to cruel, inhuman, dignity or degrading punishment or treatment. So, if an offender is taken in the police custody for the purpose of interrogation for extortion of information from him the law does not give any authority to the law enforcing agencies to torture him or behave him in degradation of his human value. It further observed that it is the basic human rights that whenever a person is arrested he must know the reasons for his arrest. The constitution provides that a person arrested by the police shall be informed of the grounds of his arrest and also that the person arrested shall not be denied of his right to consult or defend himself/herself by a legal practitioner of his/her choice. But it is seen that these rights are always denied and the police officers do not inform the nearest or close relations of the arrested persons and as a result, there is violation of fundamental rights guaranteed in the constitution. Accordingly, the High Court Division made some recommendations to amend sections 54, 167 of the Code and other provisions. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Sections 54 and 167
The first question to be considered is whether the High Court Division has illegally presumed the misuse of power by the police while using the power under sections 54 and 167 of the Code. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section-54, 60, 61, 167 and 176
Sections 54, 60, 61, 167 and 176 of the Code are relevant for our consideration which read as follows:
“54.(1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest-
firstly , any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;
secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking;
thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Government;
fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
fifthly, any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
sixthly, any person reasonably suspected of being a deserter from the armed forces of Bangladesh;
seventhly , any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;
eighthly , any released convict committing a breach of any rule made under section 565, sub-section (3);
ninthly, any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274
Section 54-Section 54 was included in the Code by the colonial rulers and this provision cannot co-exist with Part III of the Constitution. A police officer should not exercise his power of arrest on the basis of his whims and caprice merely saying that he has received information of his being involved in a cognizable offence. He is required to exercise his power depending upon the nature of the information, serious- ness of the offence and the circumstance unfurled not only in the complaint but also after investigation on the basis of information or complaint. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section 54-In case of arresting of a female person in exercise of this power, the police officer shall make all efforts to keep a lady constable present. If it is not possible by securing the presence of a lady constable which might impede the course of arrest or investigation, the police officer for reasons to be recorded either before arrest or immediately after the arrest by assigning lawful reasons. Bangladesh. represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section 54-In clause 'Firstly' of section 54 the words 'credible information" and 'reasonable suspicion' have been used relying upon which an arrest can be made by a police officer. These two expressions are so vague that there is chance for misuse of the power by a police officer, and a police officer while exercising such power, his satisfaction must be based upon definite facts and materials placed before him and basing upon which the officer must consider for himself before he takes any action. It will not be enough for him to arrest a person that there is likelihood of cognizable offence being committed, Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section 54-Before arresting a person out of suspicion the police officer must carry out investigation on the basis of the facts and materials placed before him without unnecessary delay. If any police officer produces any suspected person in exercise of the powers conferred by this clause, the Magistrate is required to be watchful that the police officer has arrested the person following the directions and if the Magistrate finds that the police officer has abused his power, he shall at once release the accused person on bail. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Sections 54 and 59-If a person commits a cognizable offence in presence of a private person, the latter can arrest him under section 59 of the Code of Criminal Procedure. A police officer may also arrest a suspected person under section 54 of the Code if the circumstances mentioned in the section attract the case. In exercise of these powers, a police officer or a private person may arrest the offender mentioned above, not to speak of an officer of the Commission. Either one can hand over the offender to the nearest police station with the money and file a case. If the police find that the offence attracts the Durnity Daman Com- mission Ain, it would intimate the Com- mission for investigation by appointing an officer. If the permission of the Commission for arresting a suspected offender is made mandatory, it would be not possible for an officer of the Commission or a police officer to arrest such offender who has committed an offence under the Money Laundering Protirodh Ain, 2012 an offence that may also attract the offence under section 27. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti- Corruption Commission, 70 DLR (AD) 109
Sections 54 and 167-That all the recommendations are not relevant under the changed circumstances. We formulate the responsibilities of the law enforcing agencies which are basic norms for them to be observed by them at all level. We also formulate guide lines to be followed by every member of law enforcing agencies in case of arrest and detention of a person out of suspicion who is or has been suspected to have involved in a cognizable offence. In order to ensure the observance of those guide lines we also direct the Magistrates, Tribunals, Courts and Judges who have power to take cognizance of an offence as a court of original jurisdiction. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Sections 54 and 59-The Appellate Division held that if a person commits a cognizable offence in presence of a private person, the latter can arrest him under section 59 of the Code of Criminal Procedure. A Police Officer may also arrest a suspected person under section 54 of the Code if the circumstances mentioned in the section attract the case. In exercise of these powers, a police officer or a private person may arrest the offender mentioned above, not to speak of an officer of the Commission. Either one can hand over the offender to the nearest police station with the money and file a case. If the Police find that the offence attracts the Durnity Daman Commission Ain, it would intimate the Commission for investigation by ap- pointing an officer. If the permission of the Commission for arresting a suspected offender is made mandatory, it would be not possible for an officer of the Commission or a police officer to arrest such offender who has committed an of- fence under the Money Laundering Protirodh Ain, 2012, an offence that may also attract the offence under section 27. So, the Commission should consider as to whether section 21 requires amendment in order to remove the anomaly. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku Vs. Anti Corruption Commission and another (Criminal) 16 ALR (AD) 197- 203
Section 60
Section 60 of the Code states that a police-officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police-station. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 61, 167
Police officer is bound to transmit to the nearest Magistrate –
The Code clearly provides that the police officer is bound to transmit to the nearest Magistrate a copy of the entries in the diary in relation to the case, whenever, any person is arrested and detained in custody and produce before a Magistrate within a period of 24 hours. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 61
Section 61 of the Code states that no police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Sections 61 and 167-While making an order under sub-section (2) the Magistrate must be satisfied with the requirements of sections 54 and 61 have been complied with otherwise the Magis- trate is not bound to forward the accused either in the judicial custody or in the police custody. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section 94- Before the seizure and search of documents and other things in respect of certain offences, prior permis sion of the Sessions Judge is necessary and in some cases, the permission of the High Court Division is necessary. By reason of this prohibition, the investigation officer can not ask any financial institution within the meaning of Bank Companies Act to show particulars of bank accounts being maintained by its customers for the purpose of inquiry or investigation in respect of offences under the Money Laundaring Protirod Ain and other specified offences. It is only with the permission of the Sessions Judge, this can be done. Anti-Corruption Commission, Dhaka vs Abdul Azim, 69 DLR (AD) 208
Section 94-Naturally, whenever the Commission gets information regarding the commission of an offence by any person which requires production and/or inspection of a document which is in custody of a bank or banker as defined in the Bankers' Books Evidence Act and relates to disclosing of any information of bank account of any person, prior permission to the Sessions Judge is necessary. The Session Judge in such eases passes an order in his administrative capacity because no proceeding has yet commenced. Under such circumstances, on perusal of the report of the investigation officer in which he has disclosed the purpose for seizure of the documents in question, if the Sessions Judge is satisfied that the seizure of document or the inspection of the bank documents relating to handling of the account is necessary for the purpose of ascertaining the truth or falsehood to the in formation, he accords. the permission. Anti-Corruption Commis- sion, Dhaka vs Abdul Azim, 69 DLR (AD) 208
Section 94
Summons to produce document or other thing
It is not necessary for the purpose of enquiry into a complaint that a formal case upon lodging an F.I.R. will have to be filed before a police officer or an Anti-Corruption Officer, who can apply for permission to the Sessions Judge for production and seizure of any document. But before according permission, the Sessions Judge is to satisfy himself that the Police Officer or Anti Corruption Officer is investigating on an alleged crime and is not merely fishing for information to harass, intimidate or coerce innocent persons. In the present case, there being a specific information in respect of alleged defalcation of a huge amount of money by several importers in collusion with Bank officials and in the face of reference that Bank’s own investigation has revealed that there has been a defalcation, the impugned order of the Sessions Judge directing the Bank to deposit to the Bureau of Anti Corruption, Chittagong all connected records regarding the removal of goods imported on obtaining loan from the said Bank, which were pledged with the Bank, calls for no interference. Messers Hamidia Oil Mills Vs. District Anti Corruption Officer, Chittagong, 16 BLD (AD) 220
Sections 94 and 160-The contention that action of notice by the respondent No. 3 was vio- lative of Article 35(4) of the Constitution is of no substance since the same were issued in con- nection with an enquiry as regards the information received against the petitioners. The petitioners are not accused of any offence and, as such, protection under Article 35(4) is not available to them. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.
Sections 94 and 160-The officers of the Anti-Corruption Bureau in connection with investigation of a complaint to ascertain the truth thereof are authorised to issue notice under section 160 CrPC. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.
Section 96- The submission that by search and seizure no fundamental right of the petitioner is violated is misconceived on the facts of the instant case. Government of Bangladesh vs Hussain Mohammad Ershad 52 DLR (AD) 162.
Section 96(1)(3-Appeals disposed of on a petition of compromise High Court Division later vacated the order and restored the two appeals on the allegation of the respondents that the petition of compromise was forged and collusively created.
On a petition of compromise the two appeals were disposed of by the High Court Division on 17th May, 1983 in terms contained in that petition. The respondents filed an application for the restoration of those appeals on the ground that the petition of compromise was created collusively and it was a forged document. The High Court Division vacated the order dated 17th May, 1983 and restored the two appeals to their file and number by an order dated 6th April, 1986. This Court refused on 31st August, 1986 to interfere with that order. Abdul Gafur vs State 41 DLR (AD) 127.
Section 99A(1)(c) To forfeit a publication the government is only required to state by notification in the official Gazette the grounds of its opinion, not its satisfaction for formation of opinion. Sadaruddin Ahmed Chisty vs Bangladesh 50 DLR (AD) 119.
Section 99 A(l)
Forfeiture of Publications containing objectionable matters—
When in its opinion any publication contains objectionable matters, the Government by order published in the official gazette- may forfeit such publication under section 99A(i) of the Code of Criminal Procedure. Objectionable matters need not the mentioned verbatim in the order. Order of forfeiture may be set aside upon application by the Special Bench of the High Court Division on the contrary shown under section 99B of the Code. Sadaruddin Ahmed Chisty Vs. Bangladesh and others- 3, MLR (1998) (AD) 258.
Section 102
Seizure of blood stained cloth of a witness— Whether indispensably necessary—
Section 154- Delay of 7 hours in lodging F.I.R. in a double murder case not fatal—
Belated disclosure of the names of assailants when satisfactorily explained—
Disposal of Criminal appeal in half- hearted manner- deprecated—
The purpose of seizure of alamats is for determination of the place of occurrence and the manner of occurrence. Non-seizure of blood stained cloth of a witness is not fatal. When the circumstances are satisfactorily explained 7 hours delay in lodging F.I.R. in a double murder case is held not fatal. When question of security is involved, belated disclosure of the names of the assailants in a double murder case is held to be valid disclosure. The appellate court must not dispose of criminal appeal in perfunctory manner which is highly deprecated because such a practice will cast adverse reflection on the administration of criminal justice by the subordinate judiciary. Mohmudul Islam alias Raton Vs. The State— 5, MLR (2000) (AD) 334.
Section 103
If the seizure list witnesses do not corroborate the police officers, and the tribunal is satisfied that the seizure of the contraband goods has been made following the procedures prescribed in section 103 of the Code of Criminal Procedure, a conviction can be given relying upon them. The conviction of the accused person in such circumstances cannot be said to be illegal. .....Md. Akram =VS= The State, (Criminal), 2016-[1 LM (AD) 581]
Section 103
Illegal search of the house of accused — Its effect when search is conducted in an irregular manner — Respectability of a witness is of no importance when a search is not made in accordance with law — Any self-respecting person would not be a party to the kind of search made in the case — Irregularities in a search conducted by an authorised officer may not ordinarily affect the legality of a proceeding and it may only affect the weight of the evidence Search, recovery and seizure of alleged incriminating articles not by a Magistrate or opolice officer but by members of the public are illegal — Arms Act (XI of 1878) S 25. Tamijuddin Ahmed Vs. The State 7 BLD (AD) 22
Section 103 -If the seizure list wit- nesses do not corroborate the police offic- ers, and the tribunal is satisfied that the seizure of the contraband goods has been made following the procedures prescribed in section 103 of the Code of Criminal Pro- cedure, a conviction can be given relying upon them. The conviction of the accused person in such circumstances cannot be said to be illegal.
নিষিদ্ধ দ্রব্যটি আছে প্রমাণিত না হলে দন্ডাদেশ বেআইনী।
জব্দ তালিকার স্বাক্ষীগণ যদি পুলিশ অফিসারের ভাষ্য সমর্থন না করে এবং ফৌজদারী কার্যবিধির ১০৩ ধারার বিধিবিধান মেনে নিয়েই নিষিদ্ধ দ্রব্যটি জব্ধ করা হয়েছে মর্মে ট্রাইবুন্যাল সন্তুষ্ট হলেই কেবল তার ভিত্তিতে দন্ডদান করা চলে। এমতাবস্থায়, আসামীর দন্ডাদেশ বেআইনী হয়েছে তা বলা যায় না। Md. Akram -Vs.- The State (Criminal) 7 ALR (AD) 1
Sections 107, 112 and 145
Criminal proceeding for restraining a person from entering into the disputed land — It is different and independent from a proceeding for executing a bond for keeping the peace — An order restraining a person from entering into a land is not contemplated in a proceeding for executing a bond to keep peace — To meet a situation arising out of a dispute over land the Magistrate is required to proceed under Section 145 Cr.P.C. — In the course of such a proceeding a Magistrate is competent to proceed under Section 107 Cr.P.C. to prevent the breach of the peace.
Criminal proceeding to bind down a person for keeping peace — Hearing of parties cannot be a substitute for an order to show cause as to why a bond should not be executed — Show cause according to the procedure provided in section 112 Cr.P.C. is mandatory and cannot be avoided even in the case of an emergency. Sultan Ahmed, Advocate and others Vs. Haji Sultan Ahmed and others 2 BLD (AD) 156.
Sections 120A and 535-Even if no formal charge is framed or there is omission to frame a charge unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction in view of section 535 of the Code. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Sections 144 and 145
When the Magistrate initiates a proceeding under section 145 Cr,P.C. on the basis of a police report, which was called for in connection with an application filed under section 144 Cr.P.C., it is to be held that there was materials before the Magistrate to Act upon and no exception can be taken against it as being beyond 60 days after the passing of the first order under section 144 Cr.P.C. Md. Esrail and others Vs. Md. Ali Ashgar and others, 15 BLD (AD) 117
Section 145
Specific Relief Act, 1877
Section 42 r/w
The Code of Criminal Procedure
Section 145
Adverse possession–– It is now well established that a person who set up the plea of his title of adverse possession must prove by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to deny of its title to the property claimed–– The defendant Monir Ahmed and others filed Title Suit No. 17 of 1957 in the First Court of Munsif, Satkania, Chittagong against Golam Khan and others for declaration of their title and confirmation of possession in the suit land and got decree and that decree was upheld that the High Court Division. All the Courts found title and possession of defendant Monir Ahmed and others in the suit land. It further appears from the materials on record that in connection with the proceeding under section 145 of the Code of Criminal Procedure the property, in question, was attached. In view of such circumstances, it is difficult to hold that the plaintiffs have had peaceful uninterrupted and continuous possession in the suit land. –Considering the aforesaid facts and circumstances, Appellate Division is at the view that the High Court Division rightly dismissed the suit holding that the plaintiffs are not entitled to get decree in the suit land on the basis of adverse possession. .....Rezia Begum =VS= Hafez Ahmed, (Civil), 2023(1) [14 LM (AD) 77]
Section 145
Proceedings not tenable— When civil court procedings are there—
Where the subject-matter is under proceedings of the civil court with the order regulating the possession thereof from long before, the proceedings under section 145 of the Cr. P.C in relation to such property is not competent and being abuse of the process of law is liable to be quashed. Abul Bashar (Haji) Vs. Hasanuddin Ahmed and others- 3, MLR (1998) (AD) 162.
Section 145
The basic requirement for drawing a proceeding under section 145 Cr.P.C. is a dispute over a land likely to cause breach of the peace. If the Magistrate is satisfied that there is an apprehension of breach of the peace and accordingly he draws the proceeding, no civil Court shall interfere with
it. If, however, the civil Court has already passed any order of temporary injunction or any order regulating possession of the disputed property, the Magistrates jurisdiction is ousted. But mere filing of a civil suit does not oust the jurisdiction of the Magistrate. Monir Ahmed Vs. Md. Mohan alias Fazle Elahi 14 BLD (AD) 246
Section 145
Breach of peace over possession– The Magistrate must bear in mind that the jurisdiction under this provision is emergency in nature and therefore, he need not wait for a police report but he must act with caution in drawing up such proceeding. Acceptance of the police report or any suggestions given by such report may sometime negate the purpose for which the power. is given upon the Magistrate under section 145. The Magistrate should not act as a routine work relying upon the said report.
When the parties submitted to the jurisdiction of the court, placed their respective case, the court should not pass such exceptional order dispossessing a party in possession of the disputed property. The Additional Sessions Judge who heard the revision petition has overlooked this aspect of the matter and maintained the order of appointment of receiver. The High Court Division has rightly interfered with the said orders. ...Omar Faruque Majumder =VS= Borhanuddin (Bacchu), (Criminal), 2020 [9 LM (AD) 378]
Section 145
On the complaint of one Abdul Latif the police started a regular case for violation of Cinematography Act and Excise Act and submitted chargesheet against the accused respondent. Under purported exercise of power under section 145(1) of Cr.P.C. the learned Magistrate directed the police to seal the cinema hail in question. After hearing the contending parties the learned Magistrate passed an order for keeping the cinema hail under attachment till title in respect of the said cinema hail is decided by a competent civil Court.
When the order of attachment has no rational and legal relationship with any legal proceeding either under section 145 Cr.P.C. or under the Cinematography Act, the only measure the learned Magistrate could take in the case was to retrace his irregular steps by giving back the cinema hail to possession of the person from whom it was sealed. Md. Mobarak Hossain (Ratna) Vs. Abdul Quddus and another, 15 BLD (AD) 157
Section 145-A proceeding under section 145 CrPC is not a criminal matter.
As to proceedings under section 145 CrPC it is erroneous to designate the complainant as an informant, having regard to the provisions of that section. Once an information is brought to the notice of the Magistrate he has to be satisfied that a dispute as to immovable property is likely to cause a breach of the peace. Further proceedings which he starts are not proceedings in the interest of any private party but in the interest of public peace. (See Babu vs Shyam, ILR 1950 All 543). It is, therefore, highly doubtful if a proceeding under section 145 CrPC can properly be termed as a "criminal matter". Jobeda Khatun vs Momtoz Begum 45 DLR (AD) 31.
Section 145-The jurisdiction of the Magis- trate under section 145 CrPC is ousted when the civil Court is seized with the subject matter of dispute. Jobeda Khatun vs Momtaz Begum 45 DLR (AD) 31.
Section 145-Under section 145 CrPC the Court deals with the limited scope of finding possession. Haji Golam Hossain vs Abdur Rahman Munshi. 40 DLR (AD) 196.
Section 145-A Magistrate making an inquiry under section 145 CrPC is to decide the fact of 'actual possession' without reference to the merits or the claims of any of the parties of a right to possess the subject of dispute. Aminul Islam vs Mujibar Rahman 44 DLR (AD) 56.
Sections 145, 439A and 561A-The revisional jurisdiction at the instance of the second party respondents under section 561A of the Code of Criminal Procedure does not lie as it is a device of invoking a second revision under the garb of an application under section 561A of the Code of Criminal Procedure which is not main- tainable. Shamsuddin alias Shamsuddoha vs Mvi Amjad Ali 56 DLR (AD) 59.
Sections 145 & 146-Dispute as to possession of land-Attachment to continue until civil Court's decision on title-The parties are litigating their title, as also possession in a Title Suit. It is for them to raise all the questions therein. All comments, observations and findings of the Magistrate in the proceedings under section 145 CrPC and of the High Court Division while disposing of the application under section 561A CrPC with regard to the title and possession of the disputed property (the subject matter of the proceeding under section 145 CrPC) will be ignored by the civil Court while deciding the title suit. It will be fit and proper, in the facts and circumstances of the case, to keep the Magistrate's order directing the receiver to hand over possession of the case land to the 1st party of section 145 proceeding in abeyance for the present and it is so ordered. It is further ordered that pending disposal of the title suit the disputed land will remain under attachment and the 1st party is to hand over possession thereof to the receiver. On receipt of judgment in the title suit, the Magistrate shall dispose of the proceeding before him in conformity with the decision of the civil Court. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.
Sections 145 and 146-The Criminal Court exercising the limited summary jurisdiction could regulate the possession of the disputed property. On the failure of the learned Magistrate to ascertain factum of possession in favour of either party direct the parties under section 146 of the Code of Criminal Procedure to go to the Court of competent civil jurisdiction. Shamsuddin vs Mvi Amjad Ali 56 DLR (AD) 59.
Sections 145 & 146-Order under section 146 could have been passed only after being satisfied on evidence in the proceeding under section 145 of the Code of Criminal Procedure that neither party could prove his possession in the subject matter of the proceeding and therefore the order passed by the learned magistrate was misconceived and beyond the authority under section 146 of the Code of Criminal Procedure. Bangladesh Co-operative Book Society Ltd vs Md Dastagirul Huq 61 DLR (AD) 62.
Sections 145 and 146(1)-The purpose of the proceeding under section 145 CrPC is to find out the possession of the property. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.
Sections 145 and 561A-As the order of the Civil Court was passed earlier there could not be any proceeding under section 145 of the Code of Criminal Procedure in respect of that property. Abdul Alim vs State 53 DLR (AD) 64.
Sections 145 & 561A-When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under section 145 CrPC. Abul Bashar vs Hasanuddin Ahmed 51 DLR (AD) 14.
Section 145
Proceeding under Section 145 Cr.P C. — Transfer application under Section 528(2) Cr PC filed — S. D M. called for records and fixed date of hearing — No stay order — Magistrate having received intimation of the S. D. M'.s order is not competent to dispose of the proceeding under Section 145 Cr.P C finally before the transfer the application was heard Md Mofazzalur Rahman Vs. Abdus Salam and others 1 BLD (AD) 213.
Sections 145 and 146
Property attached under Section 145 or 146 Cr. PC. is in custodia legis — Suit for declaration of title without a prayer for recovery of possession in respect of such property is maintainable and the civil court is competent to appoint a receiver in such a suit Specific Relief Act (1 of 1877) S 42. Jogendra Kumar Dutta Vs. Nur Mohammad and others 1 BLD (AD) 248.Ref. AIR 1943 (PC) 94; AIR 1938 (PC) 73 and AIR 1966 (SC ) 359.
Section 145
lurisdiction of the Magistrate when a civil court is already seized of the subject-matter of dispute — There is no legal provision which empowers a Magistrate to physically oust a person in possession of the disputed premises during the pendency of such proceeding Professor Md Shahabul Huda Vs. Md Shaft 4 BLD (AD) 165.Ref. 23 DLR(SC) 14.
Sections 145, 439, 439A and 561A_
Whether the Sessions Judge in exercise of his revisional powers can quash a proceeding under Section 145 Cr.P.C — Once a proceeding under Section 145 Cr.P.C. has been started with the preliminary order it must be followed up by enquiry and end with final order — There is no question of stopping in the middle unless the Miagistrate is satisfied that breach of peace does not exist — A revisional court can stop such a proceeding only in exceptional circumstances — Sessions Judge acting under Section 439A Cr PC. cannot exercise inherent powers as are available to the High Court Division under Section 561A _The Sessions Judge has no power to quash a proceeding under Section 145 Cr.P.C. initiated by the Magistrate. Md. Shahjahan Sheikh and others Vs. The Sessions Judge, Pirojpur and others 6 BLD (AD) 261.
Section 145-Whenever the Magistrate is satisfied that there is apprehension of breach of peace, he can- not draw up proceeding against the second party alone. He must draw proceeding against both the parties and direct them to put written statements in their respective claims regarding the fac- tum of possession of the disputed land. The Appellate Division held that the Magistrate drew up proceeding against the second party which is palpably illegal. The first party might be the applicant but the breach of peace over possession is not at the instance of one party. It arises when one party is in possession and the other party is trying to take such possession forcefully or has taken possession by force. If there is no resistance there cannot be any breach of peace over the possession of immovable property. Therefore, the Magistrate must draw up proceeding against both the parties. As the proceeding is found to have been initiated without application of judicial mind, the subsequent orders apparently fall through. Omar Faruque Majumder and another -Vs.- Borhanuddin (Bacchu) and others (Criminal) 15 ALR (AD) 209-211
Sections 154-Where there is no FIR or where the FIR cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it. (NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Section 154-A massage given to the local police station even if cryptic, if it discloses a cognizable offence may constitute an FIR within the meaning of section 154. A telephonic message to the police station which has been recorded by police officer and started investigation basing upon the message if it discloses a cognizable offence, the police can treat it as an FIR. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Sections 154-173, 173(3B)
We are of the view that the investigation of crime is carried out dehors the mandate contained in the Code of Criminal Procedure containing sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under section 173(3B). The High Court Division rightly allowed the investigating agency of holding further investigation even after submission of the police report and after acceptance of the same. The facts, circumstances and law related thereto, we do not find any wrong in the decision of the High Court Division which calls for any interference by this Division. .....Monjur Morshed Khan =VS= Durnity Daman Commission, (Criminal), 2018 (2) [5 LM (AD) 241]
Section 154
First Information Report — Meaning of — Information about the occurrence, which is carried to the police at the earliest opportunity after the occurrence is the First Information Report and all subsequent information fall within the purview of Section 161 Cr.P.C. Muslimuddin and others Vs. The State 7 BLD (AD) 1.
Section 154
First Information Report __Its value in case of apparent omission of fact — FIR. is not a piece of substantive evidence but it may be used for corroborating or contradicting its maker only — The attention of the witness having not been drawn to his omissions in his cross-examination under Section 145 of the Evidence Act, the defence cannot take advantage of the contradictions. Dipok Kumar Sarkar Vs. The State 8 BLD (AD) 109.
Section 154-A FIR may be lodged by any person for, it is meant just to set the machinery of law in action. Shah Alam vs State 42 DLR (AD) 31.
Section 154- FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. State vs Abdus Sattar 43 DLR (AD) 44.
Section 154- The filing of the first information report by the victim's father that she died after taking poison was no bar to file a second first information report if subsequently it transpires that the death was homicidal in nature. Abdul Khaleque vs State 53 DLR (AD) 102.
Section 154-FIR-Delay-Mere delay in lodging a case is not a ground for disbelieving a prosecution case, for there are various circum- stances in which lodging any case as to the commission of offence may be delayed. (Per SK Sinha J) Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 154- Words 'মামলা দায়ের' means institution of a case by submission of a charge- sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 of the Code of Criminal Procedure or a complaint (অভিযোগ) as envisaged under Rule 3 and 4 of the Rules.
The irresistible conclusion is that no sanction will be required to file a complaint (অভিযোগ) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended section 32, before institution of a case (মামলা দায়েরের ক্ষেত্রে) in the concerned Court. Anti- Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Sections 154 & 161-The written informa- tion that was handed over by PW 1 to the SI (PW 12) of the Sonargaon PS and Investigating Officer at 19-45 hours of 4th March, 1987 and on receipt whereof PW 12 started Sonargaon PS Case No. 2 dated 4th March, 1987, is in the eye of law not a FIR but a statement in writing by PW 1, who heard from PW 2 about the incident, to the Inves- tigating Officer, subsequent to commencement of the investigation and, as such, the same is a state- ment under section 161 of the CrPC (38 DLR (AD) 311). Ansar (Md) Chan Mia vs State 53 DLR (AD) 115.
Sections 155, 190 & 195-There is nothing in the law to prevent a police officer from making a complaint when some facts come to his knowledge even if he cannot investigate them. Abul Hossain vs State 55 DLR (AD) 125.
Section 155
For of an offence under the Drug Ordinance special procedure has been proviuol for investigation of the offence by a designated class of officers and a special Court has been set up for the prupose — Such a case can only be tried by a Drug Court situated at Dhaka and not by the UpazilaMagistrate — The case is accordingly transferred to the Drug Court at Dhaka for trial — Drug (Control) Ordinnace (VIII of 1982) S 22 — The Drug Act (XXIII to 1940) S 22. Kalipada Shaha Vs. The State 5 BLD (AD) 279. Ref. AIR 1965 (SC) 1; AIR 1962 (SC) 63; AIR 1929 (Mad) 604.
Sections 156, 167 and 173-The legislature has not contemplated investiga- tion into a case by two investigation agencies at a time or simultaneously. A reading of these sections does not also show that investigation into a case by two investigation agencies can be done at a time or simultaneously. State vs Secretary, Ministry of Public Administration, 67 DLR (AD) 271
Sections 156 and 173(3B)-No doubt, where there is already an investigation culminating in a police report, the court can trigger into motion the power of the police to conduct further investigation under section 173(3B) of the Code. The provision does not provide any specific provision that in order to hold further investigation by the police, it is necessary to take permission of the Court. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120
Sections 156(3) & 200-There is nothing wrong in the procedure adopted by the Magistrate directing the police to hold investigation treating the petition of complaint as a First Information Report Cases reported in 6 DLR (WP) 205 and 54 Cal 305 are not applicable in the facts of the present case. Yakub Ali vs State 47 DLR (AD) 94.
Section 157-First Information Report- FIR cannot be substituted for evidence given on oath and when there is no other evidence the facts mentioned in the information could not be relied upon as proof of the offence alleged. Babul vs State 42 DLR (AD) 186.
Section 161-The right of cross-examination on the basis of witnesses' previous statements under section 161 CrPC having not been available, prejudice to the defence could not be ruled out. The right given to the accused of getting copies of the statements under section 161 CrPC is a valuable right. End of justice requires setting aside the conviction. State vs Zahir 45 DLR (AD) 163.
Section 161-Judges are competent to take judicial notice of the fact about the present condition of law and order situation in the country and, as such, it is not unlikely that a witness will hesitate to tell the truth for fear of his life. Mahmudul Islam vs State 53 DLR (AD) 1.
Section 161
Mere delay is not fatal in recording the statements of witnesses. Mere delay in recording the statements of the prosecution witnesses under section 161 of the Code of Criminal Procedure can not be considered fatal if the evidence adduced by them in court appears to be credible after sifting. Shahjahan Khalifa -Vs.- The State 5 ALR (AD)2015(1) 55
Section 161 -Statement recorded u/s 161 of the Code is not substantive evidence.
Mere delay in recording the statement of a witness by the investigation officer of the u/s 161 Cr P.C. is not fatal to the prosecution if the evidence of such witness adduced by them before the Court appears to be credible on sifting of the evidence. Shahjahan Khalifa-Vs.- The State 2 ALR (2013) (AD) 78
Sections 161 and 162-An omission from the statement recorded in a boiled form does not amount to contradiction and the alleged contra- diction sought to be taken from the omission of the statement cannot, in a particular case, be proved under section 162 of the Code to hold that contradiction in accordance with the provision of section 162 has been established. Abul Kalam Azad alias Ripon vs State 58 DLR (AD) 26.
Sections 161 and 162-When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Abul Kalam Azad alias Ripon (Md vs State 58 DLR (AD) 26.
Section 161-Mere delay in recording the statement of a witness by the investi- gation officer cannot be the sole ground to discard his evidence, if he withstands the test of cross-examination and thus appears to be truthful witness. As many as 3 (three) different Police Officers investigated the case, and it appears to us that the change of Investigation Officer also contributed to the delay in examining them. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6
Sections 161 and 164-Accused murdered the deceased has not been supported by the confessional statement of the co-accused bail granted by the High Court Division affirmed by the Appellate Division.
The Appellate Division held that it ap- pears that the High Court Division, on con- sideration 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 Accused 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 judg- ment and order. Considering these facts and circumstances Appellate Division is not inclined to interfere with the impugned judgment and order granting bail to the ac- cused-respondent Faridul Alam. The State -Vs. Faridul Alam (Criminal) 12 ALR (AD) 24-25
Sections 161 and 164 read with Penal Code [XLV of 1860]
Sections 302, 34 and 114-A single testimony if convincing and found to be full, complete and self contained, whether corroborated by other witness or not, is sufficient to bring home the charge and as such there will be no ille- gality in convicting an accused on the basis of such single evidence.
The Appellate Division held that the eye witnesses PW 3, 5-7 categorically gave vi- vid description of inflicting indiscriminate blows upon the victim by the appellant Mokim and Jharu, with the deadly weapons used by them, which are supported/ corro- borated by other witnesses as well as by the post mortem report resulting death of the victim and such evidence could not be shaken by the defence. So the Courts below did not commit any illegality in finding the appellants guilty. Jharu and another Vs. The State (Criminal) 9 ALR (AD) 22-27
Section 161, 162
The Evidence Act, 1872
Section 145 r/w
The Code of Criminal Procedure, 1898
Section 161, 162
Discrepant Evidence– Discrepancies in the statement of a witness– On factual side, Mr. Shajahan’s greatest emphasis was on what he called discrepancy in testimony.
He tried to have us to accept that those who deposed before the Tribunal, did not say many of those things when they were examined by the I.O. during the investigation stage.
Under our general criminal procedural law, i.e., Cr.P.C. Section 161 provides for the recording of statements from potential witnesses by the I.O’s. Although those statements do not form parts of evidence, they do nevertheless have great evidentiary significance in that the defence can under Section 162 Cr.P.C., read with Section 145 of the Evidence Act, 1872, use such statements to prove that as deposition made by a prosecution witness in Court is discrepant with the statement he made to the I.O. at the investigation stage, they should not be treated with credence.
Although provisions of both Cr.P.C. and Evidence Act have been explicitly excluded by the Act, sanctity of statements made to the I.O. is still of great relevance in that discrepancies in the statement of a witness at different stages on the same fact is bound to dent his credibility. (Paras:748-751); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]
Section 161
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Section 161
The prosecution failed to examine Investigating Officer that the defence could not avail the opportunity to take contradictions of the evidence– The prosecution failed to examine Investigating Officer of the case, Appellate Division does not find any explanation as to why the Investigating Officer had not been examined inasmuch as the defence, as it appears from the cross-examination of the prosecution witnesses, particularly, the PWs 2, 3 and 4, put questions that they did not disclose to the Investigating Officer about the fact that the appellant asked the victim to stay with him at about 8-00 pm on 3-12-1999. Due to non-examination of the Investigating Officer the defence could not avail the opportunity to take contradictions of the evidence of those 3 PWs with their previous statements recorded under section 161 of the Code of Criminal Procedure. Consequently, the defence has been prejudiced seriously. It was bounden duty of the prosecution to examine the Investigating Officer. A serious reflection is cast on the propriety of the trial itself and the validity of the conviction due to non-examination of the Investigating Officer. This Division is of the view that the appeal merits consideration. Accordingly, appeal is allowed. The judgment and order of the courts below are hereby set aside. .....Abul Hasem =VS= State, (Criminal), 2022(2) [13 LM (AD) 358]
Section 161
“Heads (iii) and (iv) shall be noted regarding the particulars of the house searched made with the names of witnesses in whose presence search was made (section 103 of the Code) by whom, at what hour, and in what place arrests were made; in what place property was found, and of what description; the facts ascertained; on what points further evidence is necessary, and what further steps are being taken with a view to completing the investigation. The diary shall mention every clue obtained even though at the time it seems unprofitable, and every step taken by the investigating officer, but it shall be as concise as possible. It shall also contain the statements of witnesses recorded under section 161 of the Code.”
“264.(a) Case diaries (B.P. Form No. 38) shall be written up as the enquiry progresses, and not at the end of each day. The hour of each entry and name of place at which written shall be given in the column on the extreme left. A note shall be made at the end of each diary of the place from, the hour at, and the means by which, it is dispatched. The place where the investigation officer halts for the night shall also be mentioned.
(b) A case diary shall be submitted in every case investigated. The diary relating to two or more days shall never be written on one sheet or dispatched together. Two or more cases should never be reported in one diary; a separate diary shall be submitted in each case daily until the enquiry is completed. But it is not necessary to send one on any day on which the investigation, though pending, is not proceeded with.
(c) The diary shall be written in duplicate with carbon paper and at the close of the day the carbon copy, along with copies of any statement which may have been recorded under section 161 Code of Criminal Procedure and the list of property recovered under section 103 or 165 of that Code, shall be sent to the Circle Inspector. ....... When an investigation is controlled by an Inspector of the Criminal Investigation Department, the investigating officers shall forward the Circle Inspector‘s copy of the case diary through that officer who shall stamp or write on the diary the date of receipt by him and, after perusal, forward it to the Circle Inspector.
(d) In special report cases an extra carbon copy shall be prepared of the diaries, statements of witnesses recorded and lists of property recovered and sent direct to the Superintendent and a further carbon copy to the (Sub-divisional) Police Officer where there is one.
(e) Each form shall have a separate printed number running consecutively throughout the book so that no two forms shall bear the same number. On the conclusion of an investigation the sheets of the original diary shall be removed from the book and filed together. Every file shall be docketed with the number, month and year of the first information report, the final form submitted and the name of the complainant, the accused and the investigating officer. The orders regarding preservation and destruction of these papers shall also be noted.
(f) When sending charge-sheet to the Court Officer, the investigating officer shall send all his original case diaries which shall be returned by the Court Officer on the case being finally disposed of (vide regulation 772).
(g) Case diaries shall be written in English by those officers competent to do so. Other officers shall write either diaries in the vernacular. Statements recorded under section 161 of the Code of Criminal Procedure, shall, however, always be recorded in the language of the witness. In the investigation officer is unable to do so, he should write it in English.
(h) Instructions for the custody and dispatch of case diaries are given in regulation 68. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 161
Nari-O-Shishu Nirjatan Daman, 2000
Section 11(Ka)
Code of Criminal Procedure
Section 161
Sentencing him to death–– The learned Judge of Nari-O-Shishu Nirjatan Dimim Special Tribunal, Satkhira, after considering the evidence and materials on record, by the judgment and order of conviction and sentence dated 02.07.2008 convicted and sentenced the accused-respondent. ––Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the trial Court, the convict-appellant Md. Rezaul Islam Gazi alias Rezaul Islam preferred Criminal Appeal No. 4466 of 2008 and Jail Appeal No. 693 of 2008 before the High Court Division. The learned Judges of the High Court Division upon hearing the parties by the judgment and order dated 10.07.2013 rejected the death reference and allowed the criminal appeal and jail appeal and set aside the judgment and order of conviction sentence by the tribunal Court. ––The High Court Division found that the investigation officer (P.W.6) in his cross-examination clearly stated that the witnesses during examination under section 161 of the Code of Criminal Procedure stated that when the occurrence took place, accused Rezaul Islam was not present at the place of occurrence. The High Court Division further found that the cause of death could not be determined by the Medical Board in the absence of anypoison in the viscera report and that whether the death was homicidal in nature or not. The High Court Division also found that the prosecution witnesses could not prove that on night of occurrence accused Rezaul Islam was at his house. .....State =VS= Md. Rezaul Islam Gazi alias Rezaul Islam, (Criminal), 2023(1) [14 LM (AD) 451]
Section 161
Right giving to the accused for getting copies of-statements recorded under Section 161 of the Code of Criminal Procedure is a valuable right — Failure to supply to the accused such copies caused prejudice to the accused and vitiated the trial. Government of the People's Republic of Bangladesh Vs. Zahir and others 1 BLD (AD) 296.
Section 162(2)
Evidence Act 1872,
Section 32(1) read with
Section 162(2) of Code of Criminal Procedure, 1898
Whether a dying declaration recorded by an Investigating Officer is admissible in evidence:
In view of the testimonies of the PW-16 S.I. Moazzem Hossain and P.Ws. 4, 5 and 18 we do not find any reason to disbelieve the dying declaration of the victim (exhibit-4). It is true that when a police-officer in course of investigation examines any person supposed to be acquainted with the facts and circumstances of the case, the substance of that examination falls under the category of statement recorded under section 161 of the Code of Criminal Procedure and that statement is not admissible in evidence. But in view of the section 162 (2) of the Code of Criminal Procedure a dying declaration recorded by an Investigating Officer does not lose its special evidentiary value and can be sole basis for awarding conviction. Unlike recording of a confessional statement law does not require that a dying declaration shall be recorded by certain prescribed persons for the very reason that a dying man may not have sufficient time in his hand for his declaration to be recorded by a prescribed person. …Md. Mehedi Hasan @ Rajib and anr Vs. The State, (Criminal), 16 SCOB [2022] AD 17
Section 162
Section 162 of the Code of Criminal Procedure states that no statement made by any person to a police officer in course of investigation under Chapter XIV shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made whether it was signed by the person making it or it was reduced into writing.
The Appellate Division observed that there is clear bar to taking into consideration any statement made by any person accused of an offence to a police officer in course of investigation as evidence against him. Any statement made to a police officer can be used for the purpose of corroboration or contradiction of the maker of the statement. .....Md. Tofajjal Hussain =VS= The State, (Criminal), 2016-[1 LM (AD) 483]
Section 162-Section 162 of the Code of Criminal Procedure states that no statement made by any person to a po- lice officer in course of investigation un- der Chapter XIV shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made whether it was signed by the person making it or it was reduced into writing.
The Appellate Division observed that there is clear bar to taking into considera- tion any statement made by any person ac- cused of an offence to a police officer in course of investigation as evidence against him. Any statement made to a police of- ficer can be used for the purpose of corro- boration or contradiction of the maker of the statement. Md. Tofajjal Hussain @ Tofajjal Hus sain -Vs. The State (Criminal) 8 ALR (AD) 81-86
Sections 164 and 364
Recording the confessional statement before the learned Magistrate– It is settled principle of law that before recording the confessional statements, caution must be given to the accused according to the provision of law so that he can understand that he is not bound to make confessional statement. Even then, if he is willing to make the confessional statement, it is the duty of the learned Magistrate before whom the accused is produced for recording confessional statement to ascertain whether the same is voluntary and true without any threat or coercion from any external factor. Thereafter, the learned Magistrate must be administered caution that if he does so it might be used against him as evidence. Moreso, the Magistrate must give sufficient time to the accused for relax and thinking about the confession. If, thereafter, the Magistrate satisfies himself that no pressure and force is used and the accused is willing to make the confessional statement voluntarily, he, then can record the confessional statement.
After observing the principles elaborated hereinabove and all the formalities as required by law according to sections 164 and 364 of the Code if the confession is recorded by the learned Magistrate, it can be said that the confessional statement is voluntary and true. An accused if, thereafter, took a plea by filing an application for retraction of confessional statement that would not suffice unless at the trial it is proved legally that there was flaw and lacuna in recording the confessional statement. ...Runzu Sarder =VS= The State, (Criminal), 2021(2) [11 LM (AD) 180]
Sections 164 and 364
Duty of the Magistrate recording the confessional statement of an accused– The provisions of sections 164 and 364 of the Code of Criminal Procedure emphasise an inquiry by the Magistrate to ascertain the voluntary nature of confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. From the confessional statement it appears that the confessional statement recording Magistrate put questions to the appellant that he is Magistrate not Police, the appellant is not bound to make confession and the confession could be used against him in future. ...Mahbubur Rahman Titu(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 232]
Section 164-Confessional statement of appellant Dablu runs counter to the prosecution case,
The whole story is inconsistent with the "confessional statement of the appellant-PW 2 changed the version in Court which differs from the FIR about the number of participants in the murder.
Circumstances of the case-PW 4 statement differs from the confessional statement of appellant Dablu rendering it contradictory to each other. Mizazal Islam vs State 41 DLR (AD) 157.
Section 164- Previous statement, use of- The statement of a witness made u/s 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in Court (per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253.
Sections 164 & 342-The witnesses deposed disclosing involvement of petitioner Mamun in the meeting of conspiracy and the occurrence of bomb blast resulting in the murder of the two Judges-In his examination under section 342 CrPC he admitted to have committed the offence and he felt proud being able to kill the judges according to the premeditated plan of his leader His confessional statement and admis- sion before the Court coupled with evidence on record proved the case against him: Per Amirul Kabir Chowdhury J dictating the Full Court Judg- ment. Iftekhar Hasan (Md) @ Al Mamun State 59 DLR (AD) 36. VS
Sections 164 & 364- Presumption as to confession-Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the facts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to-There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD) 186.
Sections 164 and 364- Confession State- ment not recorded in the language of the maker but in the language of the Magistrate-Accused admitted nothing. State vs Abdur Rashid 40 DLR (AD) 106.
Section 164(2)- The act of recording confession is a very solemn act and in discharging his duties, the Magistrate must taken care to see that the requirements of sub-section (2) of Section 164 are fully satisfied. State vs Babul Miah 63 DLR (AD) 10.
Section 164(3)-It is a mandatory require- ment that after recording a confessional statement the recording Magistrate is required to make a memorandum to the confession containing a clause to the effect that he had warned the accused that he was no bound to make a confession, that if he makes a confession, it would be used against him, that the statement was true and voluntary, that it was recorded as per version of the maker and that it was read over to the maker after his statement was recorded which was the true and correct version and it contained a full and true account of statement made by the maker. State vs Babul Miah 63 DLR (AD) 10.
Section 164(3)-The provisions of sub section (3) of section 164 is mandatory and therefore he is required to fill up Column 7 of the form for recording confession which is a column for recording a brief statement of the Magistrate's reason for believing that the statement was voluntarily made. State vs Babul Miah 63 DLR (AD) 10.
Section 164
Confessional statement– When a Magistrate records confessional statement of an accused under Section 164 of the Code of Criminal Procedure he must observe some legal formalities (i) he must give statutory warning and caution the accused that he is not bound to make a confession; (ii) the Magistrate must be satisfied on questioning the accused that the statement has been made voluntarily. After completion of recording the statement, the Magistrate must add a memorandum at the end of the confession relating to his action. If the Magistrate observes all the legal formalities in recording the confessional statement of an accused generally the confession should be treated as voluntary and true.
The prosecution has been able to prove the case beyond reasonable doubt that both the appellants murdered the deceased victims Sakina and Sohel and, therefore, we find no wrong or illegality at the finding of the High Court Division to convict the appellants for murdering Sakina and Sohel and sentencing them to death based on judicial confession. As such, the conviction and sentence passed by the High Court Division in respect of the appellants does not suffer from any kind of legal infirmities, thus it does not call for interference by this Division.
We are of the view that justice would be sufficiently met, if the sentence of death of the appellants be commuted to one of imprisonment for life. ...Abdul Mannan(Md.) =VS= The State, (Criminal), 2021(1) [10 LM (AD) 223]
Section 164
The Code of Criminal Procedure, 1898
Section 164
The Evidence Act, 1872
Section 30
Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act; but the section does not say that confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. There Lordships think that the view which has pre¬vailed in most Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of conviction, is correct. ...Alamgir Hossain =VS= The State, (Criminal), 2021(1) [10 LM (AD) 466]
Section 164
The Penal Code
Section 302/34 r/w
The Code of Criminal Procedure
Section 164
Statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused–It is the settled principle of law that the statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused, unless there is strong circumstantial and corroborative evidence to justify the statement made by the accused under section 164 of the Code of Criminal Procedure. On perusal of the 164 statement of the accused Tutul and testimony of the P.Ws.2 and 4, we are of the view that the testimony of P.Ws.2 and 4 not only supports the statement made by the accused Tutul under section 164 of the Code of Criminal Procedure but those corroborates the same. It is also proved that confessional statement was voluntary and true and properly recorded by Mr. Narayan Chandra Das, Metropolitan Magistrate, P.W.3, in accordance with law. So, there is no iota of doubt about the abduction and then killing of the deceased, Rony by the accused persons.
We are of the view that the judgment and order of conviction and sentence passed by the trial Court are not tainted or perversed, rather the impugned judgment of the High Court Division in acquitting all the convicts is upon misreading of the testimony which cannot be sustained in the eye of law. From the deposition of P.Ws.2, 3, 4 and 14 it is proved beyond all the reasonable doubt that the accused Tutul and Badal in a pre-planned manner abducted and killed Rony in front of P.W.2 Badsha. Therefore, the judgment and order so far it relates to acquitting the accused Badal and Tutul is liable to be set aside.
The sentence of death is commuted to sentence for life in respect of convict respondents Fazlur Rahman Badal and Monir Hossain Tutul. The respondents Fazlur Rahman Badal and Monir Hossain Tutul respondents in Criminal Appeal Nos.98 and 101 of 2014 are directed to surrender before the Metropolitan Additional Sessions Judge, 1st Court, Dhaka within 2(two) weeks from the date of receipt of this judgment to serve out the rest of the sentence, failing which, the said Court shall take steps to bring them in jail custody in accordance with law. …State =VS= Fazlur Rahman alias Badal, [7 LM (AD) 269]
Section 164
If a confessional statement does not pass the test of voluntariness, it cannot be taken into consideration even if it is true:
The Evidence Act does not define “confession”. The courts adopted the definition of “confession” given in Stephen’s Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. The act of recording a confession is a very solemn act and section 164 of the Code of Criminal Procedure lays down certain precautionary rules to be followed by the Magistrate recording a confession to ensure the voluntariness of the confession. In such a case, the accused being placed in a situation free from the influence of the Police is expected to speak out the truth being remorseful of what he has committed. A confession can be acted upon if that passes two tests in the assessment of the court. The first test is its voluntariness. If a confessional statement fails to pass the first test, the second test is immaterial. If he does not disclose his complicity in an alleged crime voluntarily, court cannot take into consideration the confessional statement so recorded, no matter how truthful an accused is. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1
Section 164
It appears to us that the confessional statements pertaining to assault by knife substantially fit the medical evidence. It is only when the medical evidence totally makes the ocular evidence improbable, then the court starts suspecting the veracity of the evidence and not otherwise. That the mare fact that doctor said that injury No.1 was an “incised looking injury”, not “incised injury”, is too trifling aspect and there is no noticeable variance. The opinion of the doctor cannot be said to be the last word on what he deposes or meant for implicit acceptance. He has some experience and training in the nature of the functions discharged by him. After Zahangir inflicted the knife blow in the occipital region of victim Professor Taher, the other accused pressed down a pillow in his face to ensure his death. After confirming the victim’s death, the accused persons took the dead body to the back side of the house on a dark night and the appellant Mohiuddin ushered them the way with the torchlight of his mobile. They then put the dead body inside the manhole. In doing so the accused had to carry the dead body to a considerable distance and during that time the dead body might have fallen from their grip causing crushing of hair bulbs in the already injured occipital scalp and rendering the incised wound look like ‘incised looking’ wound. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1
Section 164
Confessions are considered highly reliable because no rational person would make an admission against his interest unless prompted by his conscience to tell the truth. Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law “(vide Taylor’s Treaties on the Law of Evidence)”. Confession possesses a high probative force because it emanates directly from the person committing the offence, and on that count, it is a valuable piece of evidence. It is a settled principle of law that the conviction can be awarded solely on the basis of confessional statements of the accused if the same is found to be made voluntarily. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1
Section 164
From a careful evaluation of the confessional statements, we are of the opinion that their statements are consistent with one another and corroborates the version given by each other. We are therefore, of the view that confessing accused were speaking the truth. …Dr. Miah Md. Mohiuddin & ors Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 1
Section 164, 342 and 364
There was no discrepancy pointed out in the evidence of the eye witnesses. A miscarriage of justice which may arise from acquittal of guilty is no less than from the conviction of an innocent. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. The High Court Division wrongly observed that there were inconsistencies in prosecution evidence adduced by the prosecution. Therefore, the decision of the High Court Division in respect of the accused persons is liable to be set aside. .....The State =VS= Md. Jamal @ Karati Jamal, (Criminal), 2022(2) [13 LM (AD) 331]
Section 164
It is well settled that the confessional statement can be the sole basis of conviction if it is made voluntarily and it is true. In the instant case, the confessional statement of the appellant is voluntary and true and it was rightly found to be so by both the trial Court and the High Court Division. It is true that there is no eye witness in the instant case, but the inculpatroy, true, and voluntary confessional statement of the convict-appellant, and the circumstances are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellant in committing murder of the victim Rashed. …Monir Ahmed Vs. The State, (Criminal), 16 SCOB [2022] AD 51
Section 164
Code of Criminal Procedure
Section 164 and
Section 8 of the Evidence Act:
It is true that there is no eye witness in the instant case, but the inculpatory, true, and voluntary confessional statements of two accused, and the circumstances particularly long absconsion by Shukur and Sentu are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellants Shukur, Sentu, Mamun and Azanur in the alleged rape and murder thereof. …Md. Shukur Ali and others Vs. The State, (Criminal), 16 SCOB [2022] AD 62
Section 164
IF testimonies of prosecution witnesses and post-mortem report are inconsistent with the contents of the confessional statement it makes the confessional statementunreliable: To prove the charge brought under Section 302 of the Penal Code primarily on the basis of the confessional statement it is duty of the Court to ascertain as to whether the confession was made voluntarily, and if so as to whether the same was true and trustworthy. Satisfaction of the Court is a sine qua non for the admissibility in evidence. True and complete disclosure of the offence is the soul of true confessional statement. In this case, the testimonies of P.Ws.1, 2, 3 and 4 and post-mortem report are inconsistent with the contents of the confessional statement of the appellant which has made the confessional statement unreliable. In view of the evidence quoted above and the contents of the confessional statement, it is difficult for us to hold that the statements made in confession by the appellant are true and those were consistent with the prosecution case. It would be extremely unsafe to base conviction of the appellant on the basis of such confessional statement accepting the same as true. …Md. Humayun Kabir Vs. The State, (Criminal), 15 SCOB [2021] AD 76
Sections 164 and 364
The Penal Code, 1860
Sections 302/34
The Code of Criminal Procedure, 1898
Sections 164 and 364
Sentence of death–– From the confessional statement of the appellant, other evidence both oral and circumstantial revealed from the evidence of prosecution witnesses, Appellate Division has no hesitation to hold that the prosecution has been able to prove the charge against the appellant beyond all shadow of doubt–– This Division does not find any illegality in the judgment and order of the High Court Division. Accordingly, the appeal is dismissed. The order of conviction and sentence awarded by the trial Court and confirmed by the High Court Division is hereby maintained. .....Mizanur Rahman Mizan(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 348]
Section-164
The victim made a statement under section 164 of the Code of Criminal Procedure admitting that she voluntarily eloped with the accused Anowar and married him, her consent carries no value, inasmuch as, she was a minor girl. The High Court Division was correct in holding such view. A minor's consent is no con-sent in the eye of law. Since the victim was found minor on the day of occurrence, even if it is taken that she eloped with the accused Anowar. .....Hannan & others =VS= The State, (Criminal), 2016-[1 LM (AD) 585]
Section 164
It is a settled proposition that a confession, judicial or extra-judicial, whether retracted or not, can in law validly form the sole basis of conviction if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture, coercion, or inducement. It is also settled that conviction on the basis of a confessional statement upon the maker can be very much based even if the confessional had been retracted at a later stage. .....Alamgir Kabir @Baitta Alamgir @Manik @Iqbal =VS= State, (Criminal), 2022(1) [12 LM (AD) 593]
Section 164
Confession– It is now well settled that as against the maker himself his confession, judicial or extrajudicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. (Per Md. Tafazzul Islam, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386]
Section 164
Statement of a witness recorded under Section 161 Cr.P C cannot be treated as substantive evidecne and conviction can not be based upon it — Even if a previous statement relates to a relevant fact it cannot be proved for the purpose of substantiating the existence of that fact — But when the witness is examined in Court the statement made by him before a Magistrate can be used to support or challenge the evidence given in Court by him Mahiruddin and others Vs. The State 6 BLD (AD) 318. Ref. 76 IA 147; AIR 1949 (PC) 257.
Section 164
Confession — Value of the objection that the Magistrate before recording the confession did not inform the accused that he would not be remanded to police custody even if he did not make any confession does not detract from its value as there is no requirement the under law to inform the accused to the avove effect — Of course, if the Magistrate has any reason to believe that the accused is apprehensive of the police, he may assure him as above but that is not to say that if it were not said, the voluntariness of the confession would be in doubt.
Extra-Judicial Confession — When not to be considered — The High Court Division rightly left out of consideration the extra-judicial confession which was made in presence of the dafadar and there was some evidence of beating by him. I hp ok Kumar Sarkar Vs. The State 8 BLD (AD) 109.
Section 164
Purpose of recording such statements — The statements of a witness recorded under Section 161 Cr.P.C. is meant for binding him down to the statement, and in the case of any glaring inconsistency amounting to purgery, the witness may be prosecuted for giving false evidence — The defence may use it to contradict the witness whereas the prosecution may use it to corroborate him when he gives evidence in the Court It is now well-settled that the statement of a witness recorded under Section 164 CfiP.C. is to be received by the Court with caution — If there are other circumstances on record which lend support to the truth of the evidence of such a witness, then his evidence can be relied upon Abu Taher Chowdhury and others Vs. The State 11 BLD (AD) 2.
Section 164- The convict was present at the time of occurrence and took part in the killing of the victim by standing guard while, according to him, other accused persons killed the victim. He not only stood guard but also took part in the jubilation along with all the other assailants. It. therefore, cannot be said that the confes- sion was exculpatory, or that the common intention to kill the victim was absent in the case of the petitioner. Mishon Chandra Das vs State, 68 DLR (AD) 392
Section 164-A confession made by an accused in connection with another case is found to be relevant in connection with other case and if the offences committed in course of the same transaction and if the confession has been duly recorded in accordance with law. Secondary evidence after fulfillment of the requirements of section 66 may be adduced to prove the confession and if the person making the confession is accused in both or all the incidents of commission of offences. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Sections 164 and 342-Second confessional statement of Shahid though has been accepted by the Adalat and also the High Court Division as voluntary and true, we are unable to accept this second confessional statement of Shahid as voluntary and true. Accused Shahid, imme diately after making of second confessional statement, filed application retracting the second confessional statement and also stating that what he stated in his Ist confessional statement was true. During trial of the case the accused Shahid, in his 342 statement, again disowned second confessional statement stating to the effect that he alone murdered Shajneen and no other accused person was involved in that occurrence. Syed Sajjad Mainuddin Hasan @Hasan vs State, 70 DLR (AD) 70
Section 164
Confessional statements if found inculpatory in nature and also true and voluntary it can be used against its maker and conviction can solely be based on it without any further corroborative evidence.
When a Magistrate records confessional statement of an accused under Section 164 of the Code of Criminal Procedure he must observe some legal formalities (i) he must give statutory warning and caution the accused that he is not bound to make a confession; (ii) the Magistrate must be satisfied on questioning the accused that the statement has been made voluntarily. After completion of recording the statement, the Magistrate must add a memorandum at the end of the confession relating to his action. If the Magistrate observes all the legal formalities in recording the confessional statement of an accused generally the confession should be treated as voluntary and true. Md. Abdul Mannan @ Mannan Vs. The State (Criminal) 22 ALR (AD) 43
Section 164
Accused-appellant Md. Abdul Mokim and also the other accused Md. Asharaful Islam @ Babu made confessional statements before a Magistrate, 1st Class under section 164 of the Code of Criminal Procedure nar- rating vividly the murder of the deceased by themselves. Both the trial court and the High Court Division, on consideration of the evidence on record and all aspects, found both these confessional statements of this accused petitioner and the other accused voluntary and true. Both the courts pointed out also that there are some other evidence and facts and circumstances which corroborated these confessional statements strongly. The Appellate Division finds no merit in this criminal petition for leave to appeal and hence it is dismissed.
The Appellate Division has examined confessional statements and other evidence on record. It appears that this accused- leave-petitioner Md. Abdul Mokim and the other accused Md. Asharaful Islam @ Babu stated in their respective confessional state- ments as to how and why they planned to murder the deceased Fazlur Rahman @ Meghu and how they materialized that plan and murdered the deceased-own paternal grandfather of this accused-petitioner Md. Abdul Mokim. In their confessional statements both the accused-petitioner stated that after killing the deceased they took away Tk. 1,24,000/- from his box and subsequently they deposited that money in the account of this accused-petitioner in Islami Bank, Chapainawabgonj Branch, These confessional statements of the accused persons have been well corroborated by the fact that during investigation it was found that this accused-petitioner actually deposited Tk. 1,20,000/- in his said account within one month of killing of Fazlur Rahman @ Meghu. The post mortem examination report of the dead body also of the deceased tallies with the narration of the killing of the deceased made in these confessional statements. Besides, some P.Ws. also have deposed to the effect that after their arrest both the accused persons made extra judicial confessional statements in presence of them stating that they murdered Fazlur Rahman @ Meghu. The confessional statements of these two accused persons coupled with all these evidence and the facts and circumstances on record prove sufficiently that this accused-leave-petitioner Md. Abdul Mokim and the other accused, in further- ance of their common intention, murdered Fazlur Rahman @ Meghu as alleged by the prosecution. The trial court and the High Court Division thus rightly found this accused Md. Abdul Mokim guilty under sections 302/34 of the Penal Code. However, the High Court Division reduced the sentence of death imposed on this accused-leave-petitioner by the trial court and sentenced him to imprisonment for life. In view of above discussion it is evident that there is no merit in this criminal petition for leave to appeal and hence it is dismissed. Md. Abdul Mokim -Vs. The State and another (Criminal) 19 ALR (AD) 147-149
Section 164- A confession by an accused in accordance with law is admissible without examining the Magistrate who recorded it in view of the fact that the Magistrate was a public servant who recorded the statement in discharge of his official duty provided that it was recorded in accordance with law. The usual presumption arises under this section that the confession is voluntarily made. The burden is on the accused of showing that his confession is not voluntarily made. The Magistrate's mere admission in the cross-examination that he filled up the form in question and answer required by section 164 of the Code in re- cording the confession, is sufficient in itself that he has recorded it properly. This section dispenses with the necessity of formal proof of a confession recorded in accordance with law. Genuineness under the section can be presumed only when the confession has been recorded substantially in the form and in the manner provided by law. Mufti Abdul Hannan Munshi alias Abul Kalam and another Vs. The State (Criminal) 19 ALR (AD) 126-141
Section 164- General principle of Criminal Justice System is that evidence of even a single witness if corroborated by any material on record is sufficient for convicting an accused.
The Appellate Division opined that here in the case eye witness Zakirul Islam Ratan, who was in the sane rickshaw with the victim and accompanied the victim to the place of occurrence clearly stated as to how they were surrounded by the accused persons, how the accused persons singled the victim out for killing him who inflicted which blow clearly shows the motive of the accused persons. The statement of PWs-1, 3 and 5 are the other witnesses, who came to the place of occurrence soon after the occurrence took place, corroborate the statement of PW-2 as such those are sufficient evidence for convicting the accused persons. PW-2, Md. Zakirul Islam Ratan, gave statement before the Magistrate under section 164 of the Code of Criminal Procedure soon after he had been released from DMCH; he did not retract from his statement and deposed the same when he was examined by the prosecution and remained unimpeached during cross examination by the defence. His evidence has been corroborated by the PWs 6, 10, 11, 12 and 21. Moreover, none of the witnesses sated that the convict- appellant did not take part in killing the deceased. As PW-2 was the companion of the victim at the time of occurrence and he was also been injured by the accused persons his testimony carries much weight and the testimony of such witness is considered to be beyond condemnation and rather reliable. Moreover, when PW-2 stated that the appellant Liton inflicted Chhora blow on the chest of the victim along with other indiscriminate blows inflicted by the other accused persons and the Post Mortem Report having supported such injury on the chest and other parts of the body of the deceased, the evidence of PW-2 found to be well corroborated and established by the medical evidence. Liton. -Vs. The State. (Criminal) 18 ALR (AD) 141-147
Section 164
It is the settled principle of law that the statement of co-accused under section 164 of the Code of Criminal Procedure cannot be the basis for conviction of other co-accused, unless there is strong circumstantial and corroborative evidence to justify the statement made by the accused under section 164 of the Code of Criminal Procedure.
On perusal of the 164 statement of the accused Tutul and testimony of the P.Ws.2 and 4, the Appellate Division is of the view that the testimony of P.Ws. 2 and 4 not only supports the statement made by the accused Tutul under section 164 of the Code of Criminal Procedure but those corroborates the same. It is also proved that confessional statement was voluntary and true and properly recorded by Mr. Narayan Chandra Das, Metropolitan Magistrate, P.W.3, in accordance with law. So, there is no iota of doubt about the abduction and then killing of the deceased, Rony by the accused persons. Fazlur Rahman Badal and Monir Hossain Tutul. State -Vs.- Fazlur Rahman alias Badal (Criminal) 16 ALR (AD) 19-29
Section 164 read with Penal Code [XLV of 1860]
Sections 34,201 and 302 -Without signature or L.T.I. in the confessional statement of the accused whether legal or can be relied upon.
The Appellate Division held that the sig- nature or L.T.I. of the appellant was not obtained in the confessional statement. So the same cannot be relied upon. But it is on record that the appellant retracted his con- fession in writing subsequently which clearly goes to show that he made the judi- cial confession. In the opinion of recording Magistrate the confession is true and ve- luntary. Together with this Appellate Division has the circumstances of the case, P.W.8, Albert Shing in his evidence stated that on the night of occurrence at about 8.30, the deceased told him that he was going to bring V.C.P. set but thereafter the deceased did not come back and subse- quently his deadbody was found near Tul- shiram School. P.W.9, Mostak Ahmed in his evidence stated that on 30.12.1995 he went to perform his duty as night guard as substitute of his father at Tulshiram School and found some persons talking near the latrine of the school. At that time accused Apel told him to go out and about 15/20 minutes after two more persons came and all of them told them to go out. He went to nearby primary school and stayed for half an hour near a grocer's shop. The learned Deputy Attorney General submits that the confessional statement of the appellant is sufficient for his conviction and in addition there is circumstantial evidence also and the High Court Division rightly maintained his conviction and sentence and dismissed the appeal. From the discussion above, Ap- pellate Division is of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision and as such there is no cogent rea- son to interfere with the judgment of the said Division. The appeal is dismissed. Shamim Beg @ Md. Shamim Beg - Vs.- The State (Criminal) 12 ALR (AD) 60-62
Section 164- The absence of the recording Magistrate as witness has not caused any prejudice to the accused appellant.
The confessional statement of the appellant was recorded by Mazaffar Ahmed, Magistrate 1st Class and was proved in court by Abu Bakkar Siddique, Magistrate 1st Class who deposed as P.W. 7. In his cross-examination he stated that the recording Magistrate was abroad and that he recognized his signature as he is a colleague. It further appears that P.W. 7 was cross-examined on behalf of accused appellant Ayen Uddin, particularly with regard to the recording of the confession and filling up of the form. The Appellate Division do not find any material irregularity in filling the form by the Magistrate. The Appellate Division view all the relevant questions have been put to the accused who made the statement voluntarily implicating himself with the offence. As such the Appellate Division not find that the absence of the recording Magistrate as witness has not caused any prejudice to the accused appellant. Had the Magistrate been called as a witness he would simply have repeated what he has recorded in the form of the confessional statement. Md. Ayen Uddin -Vs. The State 5 ALR (AD)2015(1) 90
Section 164-Confessional statement.
Appellate Division observed that the accused was previously taken on remand and did not make any confessional statement and only made the confessional statement after having been taken on remand for the second time, raises doubts about the voluntariness of the confessional statement, especially when the Magistrate who recorded the statement is found to have not made a genuine effort to find out the real character of the confession. The High Court Division noted that the confessional statement was recorded in a very mechanical and casual manner, so Appellate Division does not find any reason to interfere with the decision of the High Court Division. The State -Vs. Nuru Miah 5 ALR (AD)2015(1) 97
Section 164-A statement made un- der section 164 of the Code cannot be used as substantive evidence; it can only be used in cross examining the maker thereof only to show that it was false.
The Appellate Division held that two types of persons can be produced before the Magistrate for recording statement or confession. First one is a witness and second one is an accused, whose statement or confession may be recorded by the Magistrate if the same is voluntary. A statement made under section 164 of the Code cannot be used as substantive evidence; it can only be used in cross examining the maker thereof only to show that it was false. Humayun Kabir and another. -Vs.- The State. (Criminal) 10 ALR (AD) 290-297
Section 164(3)- From the form on which the confessional statement was recorded, it appears that accused Bhola and Jahangir were kept in the custody of police personnel before recording their state- ments. Hence, it could be said that these two accused persons were still under apprehension of threat from the police, especially since they had been produced from police custody where they had spent time on remand ordered by the Court. The judicial confessions were rightly left out of consideration by the High Court Division. Sikha Rakshit vs Paritosh Rakshit, 70 DLR (AD) 1
Section 164(3)-Retraction of a confession has no bearing whatsoever if it was voluntarily made so far the maker is concerned. It is, however, very weak type of a fact like any other fact and it cannot be the basis for conviction of co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6
Section 164(3)- If the confessional statement is found true and voluntary, it can form the basis for conviction even if retracted so far the maker is concerned but it cannot be used against co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader@ Mobile Kader, 67 DLR (AD) 6
Sections 164(3) and 342-Shahid in his 342 statement, evidently tried to conceal the fact of rape though in his own carlier two confessional statements he narrated elaborately how he caused rape to victim Shajneen. Considering the evidence including the own confessional statements of Shahid both the tribunal and the High Court Division did not give any reliance on the very belated statement of Shahid which he made under section 342 of the Code and rightly found that victim Shajneen was raped before murder. Syed Sajjad Main- uddin Hasan Hasan vs State, 70 DLR (AD) 70
Sections 164(3) and 364-One of the essential elements of any confessional statement is that it must be voluntary. In order to gauge that the statement is voluntary, the Magistrate must ensure that the confessing accused is free from any fear and that he is making his statement without any inducement or duress. It is, therefore, important that the Magistrate ensures that there is no police presence, which might act as a threat or perceived threat to the confessing accused. Sikha Rakshit va Paritosh Rakshit. 70 DLR (AD) 1
Section 167-It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer. Government of Bangladesh vs Mahmudur Rahman, 68 DLR (AD) 373
Section 167-The longest period for which an accused can be ordered to be detained in police custody by one or more such orders is only 15 days. Where even within the 15 days time allowed under this section the investigation is not completed, the police may release the accused under section 169. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST. 69 DLR (4D) 63
Sections 167 and 169-Since a remand order is judicial order, the Magistrate has to exercise this power in accordance with the well settled norms of making a judicial order. The norms are that he is to see as to whether there is report of cogni zable offence and whether there are allegations constituting the offence which is cognizable. Non-disclosure of the grounds of satisfaction by a police officer should not be accepted. Whenever, a person is arrested by a police during investigation he is required to ascertain his complicity in respect of an cognizable offence. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Sections 167, 169, 170 and 173- The word "accused" used in section 167 and in sections 169, 170 and 173 of the Code denote the suspected offender who has not yet come under the cognizance of court. It does not rest in the discretion of the police officer to keep such person in custody where and as long as he pleases. Under no circumstances, can he be retained for more than 24 hours without the special leave of the Magistrate. Any longer detention is absolutely unlawful. The accused should actually be sent before the Magistrate; the police cannot have the accused in their custody and merely write for and obtain the special leave for such detention. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section 167-The provisions of section 167 CrPC being a procedural law, there being no express provisions for its prospective operation, shall operate retrospectively. AKM Azizul Islam vs State 49 DLR (AD) 115.
Sections 167 & 173-Charge-sheet sub- mitted not upon the revival of the case under section 167 but following the further investigation under section 173 CrPC-The power to make further investigation is available to the police if there has been no order under 167 CrPC stopping the proceeding and releasing the accused after the expiry of the period of investigation under the said section. Shah Alam Chowdhury vs State 42 DLR (AD) 10.
Section 167(7)- Transitory Provisions, purpose of Investigation pending immediately before commencement of the Ordinance-Magis- trate did not accept the Final Reported directed further investigation Police on further investi- gation submitted charge-sheet for beyond the "specified period" of 60 days as stated in sec. 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision-Charge-sheet was submitted one year after the Magistrate's order for further investigation-Accused res- pondents, whether entitled to be released- Provision in section 35(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion-Investigation on which the police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7) Consequently the charge- sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.
Sections 167 and 173
Charge-sheet validity of— The police validly submitted the charge-sheet as the power to make further investigation is always available to them and if there has been no order stop- ping the proceeding and releasing the accused after the expiry of the period of investigation — Secondly, the petitioner does not seem to have raised the question at any stage that the submission of the chargesheet was bad in law — It is held that charge sheet has been validly submitted. Shah Alam Chowdhury Vs. The State 9 BLD (AD) 127.
Section 167(5)
Amendment in procedural law—Retrospectivity—
Unless otherwise expressly provided for, amendment of procedural law operates retrospectively. When a Magistrate who has the power to extend time for investigation, has accepted the Police Report (Charge-Sheet) filed two days after the expiry of the time limit, it goes by necessary implication that the Magistrate has extended the time for investigation.
Sree Sree Is war Kala Chan Jew represented by its Shebait Manager Kalipada Datta Vs Shubal Chandra Dev and another- 2, MLR (1997) (AD) 333.
Section–167
Shown arrest–
Writ petitioner has been shown arrested in a good number of cases and some of the order sheets have been placed before this court. On perusal of the order sheets. We have noticed that the police officers have not complied with the provisions of section 167 of the Code of Criminal Procedure while praying for showing him arrested and repeatedly made petitions showing him arrested in many cases and the Magistrate passed mechanical orders on their applications.
It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer. .....Government of Bangladesh & others =VS= Mahmudur Rahman & another(Civil), 2016-[1 LM (AD) 100]
Section 167(1)
Section 167(1) of the Code provides that whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police-station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Government shall authorize detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other than the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, he shall forward a copy of his order, with his reasons for making it to the Chief Metropolitan Magistrate or to the Chief Judicial Magistrate to whom he is subordinate.
(4A) If such order is given by a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, he shall forward a copy of his order, with reasons for making it to the Chief Metropolitan Sessions Judge or to the Sessions Judge to whom he is subordinate.
(5) If the investigation is not concluded within one hundred and twenty days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation-
(a) the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence to which the investigation relates is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Magistrate; and
(b) the Court of Session may, if the offence to which the investigation relates is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Court:
Provided that if an accused is not released on bail under this sub-section, the Magistrate or, as the case may be, the Court of Session shall record the reasons for it:
Provided further that in cases in which sanction of appropriate authority is required to be obtained under the provisions of the relevant law for prosecution of the accused, the time taken for obtaining such sanction shall be excluded from the period specified in this sub-section.
Explanation-The time taken for obtaining sanction shall commence from the day the case, with all necessary documents, is submitted for consideration of the appropriate authority and be deemed to end on the day of the receipt of the sanction order of the authority.]
(6)-(7A) [Omitted by section 2 of the Criminal Procedure (Second Amendment) Act, 1992 (Act No. XLII of 1992).]
(8) The provisions of sub-section (5) shall not apply to the investigation of an offence under section 400 or section 401 of the Penal Code, 1860 (Act XLV of 1860).]. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 167, 169, 170 and 173
Accused–
The word “accused” used in section 167 and in sections 169, 170 and 173 of the Code denote the suspected offender who has not yet come under the cognizance of court. It does not rest in the discretion of the Police-officer to keep such person in custody where and as long as he pleases. Under no circumstances, can he be retained for more than 24 hours without the special leave of the Magistrate under this section. Any longer detention is absolutely unlawful. The accused should actually be sent before the Magistrate; the police cannot have the accused in their custody and merely write for and obtain the special leave under this section for such detention. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 167
The Magistrate exercising his jurisdiction under section 167 performs judicial functions and not executive power, and therefore, the Magistrate should not make any order on the asking of the police officer. The object of requiring an accused to be produced before a Magistrate is to enable him to see that a police remand or a judicial remand is necessary and also to enable the accused to make a representation he may wish to make. Since a remand order is judicial order, the Magistrate has to exercise this power in accordance with the well settled norms of making a judicial order. The norms are that he is to see as to whether there is report of cognizable offence and whether there are allegations constituting the offence which is cognizable. Non-disclosure of the grounds of satisfaction by a police officer should not be accepted. Whenever, a person is arrested by a police during investigation he is required to ascertain his complicity in respect of an cognizable offence. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 167 is supplementary to section 61
Section 167 is supplementary to section 61 of the Code. These provisions have been provided with the object to see that the arrested person is brought before a Magistrate within least possible delay in order to enable him to judge if such person has to be kept further in the police custody and also to enable such person to make representation in the matter. The section refers to the transmission of the case diary to the Magistrate along with the arrested person. The object of the production of the arrested person with a copy of the diary before a Magistrate within 24 hours fixed by section 61 when investigation cannot be completed within such period so that the Magistrate can take further course of action as contemplated under sub-section (2) of section 167. Secondly, the Magistrate is to see whether or not the arrest of the accused person has been made on the basis of a reasonable complaint or credible information has been received or a reasonable suspicion exist of the arrested persons having been concerned in any cognizable offence. Therefore, while making an order under sub-section (2) the Magistrate must be satisfied with the requirements of sections 54 and 61 have been complied with otherwise the Magistrate is not bound to forward the accused either in the judicial custody or in the police custody. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Sections 167(1)/(2) & 54
The Code of Criminal Procedure, 1898
Sections 167(1)/(2) & 54 r/w
The Special Powers Act, 1974
Section 3
Guide lines for the Law Enforcement Agencies–
(i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum.
(ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and the place in custody.
(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcing officer to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is staying.
(iv)Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the law enforcing officer’s custody or in the judicial custody under section 167(2) of the Code.
(v) No law enforcing officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act, 1974.
(vi) A law enforcing officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.
(vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor.
(viii) If the person is not arrested from his residence or place of business, the law enforcing officer shall inform the nearest relation of the person in writing within 12 (twelve) hours of bringing the arrestee in the police station.
(ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.
(x) When any person is produced before the nearest Magistrate under section 61 of the Code, the law enforcing officer shall state in his forwarding letter under section 167(1) of the Code as to why the investigation cannot be completed within twenty four hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary B.P.Form 38 to the Magistrate. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Sections 167(2) and 169
Guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of an offence–
(a)If a person is produced by the law enforcing agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per section 167(2) of the Code, the Magistrate or the Court, Tribunal, as the case may be, shall release him in accordance with section 169 of the Code on taking a bond from him.
(b)If a law enforcing officer seeks an arrested person to be shown arrested in a particular case, who is already in custody, such Magistrate or Judge or Tribunal shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case and if that the prayer for shown arrested is not well founded and baseless, he shall reject the prayer.
(c)On the fulfillment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person as required under section 167(2) and if the case is exclusively triable by a court of Sessions or Tribunal, the Magistrate may send such accused person on remand under section 344 of the Code for a term not exceeding 15 days at a time.
(d)If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above.
(e)The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report disclose that the arrest has been made for the purpose of putting the arrestee in the preventive detention.
(f)It shall be the duty of the Magistrate/Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under section 167 of the Code.
(g)If the Magistrate has reason to believe that any member of law enforcing agency or any officer who has legal authority to commit a person in confinement has acted contrary to law the Magistrate shall proceed against such officer under section 220 of the Penal Code.
(h)Whenever a law enforcing officer takes an accused person in his custody on remand, it is his responsibility to produce such accused person in court upon expiry of the period of remand and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct for the examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhumation of the dead body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place.
(i)If there are materials or information to a Magistrate that a person has been subjected to ‘Nirjatan’ or died in custody within the meaning of section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of ‘Nirjatan’ and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-moto under section 190(1)(c) of the Code without awaiting the filing of a case under sections 4 and 5 and proceed in accordance with law. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 167(3)
Sub-section (3) of section 167 requires that when the Magistrate authorises detention in police custody, he should record his reasons for so doing. The object of this provision is to see that the Magistrate takes the trouble to study the police diaries and to ascertain the actual conditions under which such detention is asked for. The law is jealous of the liberty of the subject and does not allow detention unless there is a legal sanction for it. So in every case where a detention in police custody is ordered the Magistrate should state his reasons clearly. He should satisfy himself (a) that the accusation is well-founded, and (b) that the presence of the accused is necessary while the police investigation is being held. The mere fact that the police state that the presence of the accused is necessary to finish the investigation, is not sufficient to order detention. To order a detention of the accused in order to get from him a confessional statement or that he may be forced to give a clue to stolen property is not justified. Similarly it is improper to order detention in police custody on a mere expectation that time will show his guilt or for the reason that the accused promised to tell the truth or for verifying a confession recorded under section 164 or for the reason that though repeatedly asked the accused will not give any clue to the property. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 167(1)- Diary should contain full unabridged statement of persons examined by the police so as to give the Magistrate a satisfactory and complete source of information which would enable him to decide whether or not the accused person should be detained in custody. Section 167(1) requires that copies of entries of the diary should be sent to the Magistrate with the object to prevent any abuse of power by the police officer. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section 167(2)- If the trial of an offence commences in the court of sessions, the Magistrate does not possess any power to remiand an accused person. It is the trial court which will pass necessary orders if it thinks fit. But before the trial commences and after expiry of fifteen days time provided in sub-section (2) of section 167, the law does not permit the Magistrate to direct a suspected accused person to be detained in judicial custody. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section 167(2)- A Magistrate/Judge having power to take cognizance of an offence has no power to direct the detention of an accused person in the judicial custody, if he thinks fit, beyond a period of fifteen days from the date of production in court after arrest by a police officer in respect of a cognizable offence. The Code is totally silent to deal with an accused person who is allegedly involved in a cognizable offence if the police officer fails to conclude the investigation of the case within this period. If the Magistrate has no power to direct such accused person to be detained in judicial custody, he will be left with no option other than to release him on bail till the date of submission of police report. Normally in most cases the police officers cannot complete the investigation within the stipulated period sanctioned by law and normally they take years together. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST. 69 DLR (AD) 63
Section 169-Section 169 of the Code of has not given the Police Officer any power to judge the credibility of the witnesses and to decide the defence plea of alibi. Abdur Rouf vs Jalaluddin 51 DLR (AD) 22.
Section 169
The Investigating officer has no power to weigh evidence, judge credibility of witness and submit final report on alibi—
The duty of the Investigating police officer during investigation is to collect evidence and forward the accused to the Magistrate if on the basis of materials reasonable suspicion against the accused is established. Section 169 of the Code of Criminal Procedure does not empower the Investigating officer to weigh the evidence, judge the credibility of witness, decide the plea of alibi and submit final report. Plea of alibi can be taken only at the time of trial before the Court by way of defence. Abdur Rouf and others Vs. Jalaladdin and another.— 4, MLR (1999) (AD) 27.
Section 169
The entries in the diary afford to the Magistrate the information upon which he can decide whether or not he should authorise the detention of the accused person in custody or upon which he can form an opinion as to whether or not further detention is necessary. The longest period for which an accused can be ordered to be detained in police custody by one or more such orders is only 15 days. Where even within the 15 days time allowed under this section the investigation is not completed, the police may release the accused under section 169. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 172-It is incumbent upon a police officer who investigates the case under Chapter XIV to keep a diary as provided by section 172 and the omission to keep the diary deprives the court of the very valuable assistance which such diary can give. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63
Section-172
The Code of Criminal Procedure, 1898
Section-172 r/w
Police Regulations of Bengal
Regulation-68
Diary–
The ‘diary’ referred to in sub-section (1) is a special diary referred to in section 172 of the Code read with regulation 68 of Police Regulations, Bengal. Regulation 68 provides the custody of case diary as under:
“68. Custody of case diaries.
(a) Only the following police officers may see case diaries:—
(i) the investigating officer;
(ii) the officer in-charge of the police-station:
(iii) any police officer superior to such officer in-charge;
(iv) the Court officer;
(v) the officer or clerk in the Superintendent‘s office specially authorized to deal with such diaries; and
(vi) any other officer authorized by the Superintendent.
(b) The Superintendent may authorize any person other than a police officer to see a case diary.
(c) Every police officer is responsible for the safe custody of any case diary which is in his possession.
(d) Every case diary shall be treated as confidential until the final disposal of the case, including the appeal, if any, or until the expiry of the appeal period.
(e) A case diary shall be kept under lock and key, and, when sent by one officer to another, whether by post or otherwise, shall be sent in a closed cover directed to the addressee by name and superscripted ―Case diary. A case diary sent to the Court office shall be addressed to the senior Court officer by name.
(f) A cover containing a case diary shall be opened only by the officer to whom it is addressed, except as prescribed in clauses (g) and (h) if such officer is absent, the date of receipt shall be stamped upon the cover by the officer left in charge during his absence and the cover shall be kept till his return or forwarded to him.
(g) Covers containing case diaries received in the Superintendent‘s office shall be opened as prescribed in regulation 1073, and made over directly to the officer or clerk specially authorized to deal with case diaries. Such officer or clerk shall take action under clause (i) and personally place the diaries before the Superintendent or other officer dealing with the case.
(h) Covers containing case diaries received in the Court office may be opened by any officer specially authorized in writing by the Court officer or by a superior officer.
(i) When an officer opens a cover containing a case diary, he shall stamp or write on the diary the date, if any, which has been stamped on the cover under clause (f) or, if there is no such date on the cover, the date on which he received it, and shall, after perusing the diary, file it with any other diaries relating to the same case which are in his possession.
A Circle Inspector and a Court officer shall stamp or write such date on every page of the diary and on every enclosure received with it, such as statements recorded under section 161, Code of Criminal Procedure, maps and the brief.
(j) Every Investigating Officer shall be provided with a deed box, and every Circle Inspector, Sub-divisional Police Officer and Court officer with a suitable receptacle, in which to keep case diaries under lock and key. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 172
The object of use of special diary under section 172 of the Code has been well explained by Edge,CJ. in Mannu, ILR 19 All 390 “the early stages of investigation which follows on the commission of a crime must necessarily in the vast majority of cases to be left to the police and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary for the protection of the public against criminals for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false or misleading, which was obtained from day to day by the police officer who investigating the case and what were the lines of investigation upon which the police officer acted.’ .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 172
Section 172 relates to the police diary made in respect of a case under inquiry or trial by the court which calls for it. It is incumbent upon a police officer who investigates the case under Chapter XIV to keep a diary as provided by section 172 and the omission to keep the diary deprives the court of the very valuable assistance which such diary can give. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section-172
Diary without any apparent failure –
In most cases, the police officers have developed a bad habit of writing case diary long after conclusion of investigation or after a few days of the investigation. It is not at all a promising approach when the police officers follow such procedure. This is a compulsory requirement for an investigation officer to record the case diary without any apparent failure. The case diary must refer to the proceedings in investigation of an alleged offence. Section 172 of the Code clearly states:-
“Every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary........”. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 172(1)
Every detail in connection with the investigation into the offence must clearly be recorded without fail. It is to be noted that in section 172(1) of the Code the word “Shall” has been used which definitely indicates “mandatory”. So, a case diary must be recorded and all the details as mentioned in the section 172(1) of the Code must be recorded without any failure by the police officer in charge of investigation of an offence. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 172-The Case Diary of an Investi- gating Officer which is not a public document cannot be made public by swearing affidavit. Bangladesh vs Dr Shamima Sultana Rita 54 DLR (AD) 151.
Sections 173 & 439A-So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction.
Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this Court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the ambit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.
It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this timehonoured and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of justice and erode people's confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path.
Per Latifur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Consti- tutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh. Sher Ali vs State 46 DLR (AD) 67.
Section 173(3b)-The Government's decision to withdraw a case from the Criminal Investigation Department after withdrawing the earlier order for investigation by the CID is not illegal. Abu Talukder vs Bangladesh 49 DLR (AD) 56.
Section 173
Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003)
Section 11 (Ga)
Code of Criminal Procedure, 1898
Section 173
Tribunal has proper authority to decide whether the case should be sent for further investigation by any other agency or he can ask for a report after holding a judicial enquiry– The learned Judge (Bicharok) Nari-O-Shishu Nirjatan Daman Tribunal No.1, Dhaka has proper authority to decide whether the case should be sent for further investigation by any other agency or he can ask for a report after holding a judicial enquiry. Appellate Division, therefore, hold the view that the impugned order as well as the order dated 11.08.2008 passed by the learned Judge (Bicharok) Nari-O-Shishu Nirjatan Daman Tribunal No.1, Dhaka should be set aside and the matter should be placed before the learned Judge (Bicharok) Nari-O-Shishu Nirjatan Daman Tribunal No.1, Dhaka for taking steps in the light of the observations made in this judgment and order. ...Elina Ainun Nahar =VS= The State, (Criminal), 2021(2) [11 LM (AD) 486]
Sections 173 and 561A
Since the case is still under investigation and in the truest sense no proceeding is pending, the High Court Division committed an error of law in quashing the proceeding. The ingredients of the offence alleged to have been committed under section 406/420/506 of the Penal Code by the accused or not it is difficult to ascertain at this stage....(9)........... 76 DLR (AD) 23
Sections 173 and 498-Anticipatory bails shall not survive post charge-sheet stage. Durnity Daman Commission vs Dr. Khandaker Mosharraf Hossain, 66 DLR (AD) 92
Section 173-The discharge of the accused on the basis of the final report does not amount to acquittal and so there is no bar of holding further inves- tigation even after acceptance of police report when fresh material comes to light against accused persons.
The Appellate Division considered that the words, 'nothing is this section shall be deemed to preclude further investigation' used in section 173(3B) clearly emphasize that nothing in Section 173 shall be con- strued to preclude further investigation by the investigating agency in respect of an offence after a report under section 173(1) of the Code. The Court can order for fur- ther investigation even after acceptance of final report stating non-availability of the materials. Since the order of discharge neither amounts to an acquittal nor to a fi- nal order, the accused can be proceeded against for the same offence on the basis of supplementary report submitted on holding further investigation or on the basis of na- raji petition filed by the infor- mant/complainant. It is no longer res inte- gra that the Court, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final re- port is submitted under section 173(3B) of the Code.
Monjur Morshed Khan and others Vs. Durnity Daman Commission(Anti Corruption Commission) and another (Criminal) 13 ALR (AD) 54-56
Section 173(1)(3B) Section 173(1) (3B) of the Code allows for further investigation and submission of a further report with further evidence, oral or documentary in respect of an offence, even after a report had been forwarded to the Magistrate under section 173(1) of the Code. Abul Bashar Chowkidar va Abdul Mannan @ Khademul Islam, 66 DLR (AD) 286
Section 173 (3B)
Section 173 (3B) of the Code allows for further investigation and submission of a further report with further evidence, oral or documentary in respect of an offence, even after a report had been forwarded to the Magistrate under section 173 (1) of the Code. Abul Bashar Chowkidar -Vs.- Abdul Mannan 6 ALR (AD) 2015 (2)61
Section 173
Further investigation– The informant lodged an FIR making specific allegations against the accused persons and the case started on that FIR. The police investigated into those allegations and submitted final report, but the learned Magistrate, considering the application filed by the informant against that final report and the materials on record including the FIR, without accepting that final report, ordered for a further investigation by judicial Magistrate, which was not illegal at all. ...Mahmud Miah =VS= The State, (Criminal), 2021(1) [10 LM (AD) 430]
Section 173 and 190
It is settled Principal of law that initiation of a criminal proceedings starts after taking cognizance of offence. Submission of charge sheet cannot be treated as finality of investigation until cognizance of the offence is taken by the appropriate court. ...Dr. Zubaida Rahman Vs. The State & anr, (Criminal), 17 SCOB [2023] AD 54
Section 173
Final Report— Naraji—a complaint—
Naraji petition filed against the Final Report submitted under section 173 Cr. P.C. by the Investigating officer cannot be rejected merely upon report from the Superintendent of Police beyond the nuance of the relevant law. Since naraji petition is considered as a complaint the Magistrate if upon examination of the complainant or other witness if any, is satisfied may issue process upon the accused or he may direct inquiry into it by any other Magistrate. When not so done direction for further inquiry given by the High Court Division is perfectly justified. Syed Azharul Kabir Vs. Syed Ehsan Kabir— 4, MLR (1999) (AD) 343.
Section 173(3A)
Police Report to accompany statements of witness— Supply of copy to accused
Police report is to accompany the statements of the witnesses to the Court to get copy of which the accused are entitled. Non-compliance with this provision of law prejudices the accused. However if the same is complied before hearing under section 265B of the Code of Criminal Procedure, the defect is cured. Bazlul Hada (Major Retd.) and another Vs. The State— 5, MLR (2000) (AD) 276.
Section 173
Re-investigation or a further investigation is a matter of semantics–
Appellate Division helds that there is no gainsaying that the Code of Criminal Procedure does not provide for reinvestigation of any case. Whether or not the investigation done in any case subsequent to the submission of a charge sheet after the initial investigation is completed, is the result of a “reinvestigation” or a “further investigation” is a matter of semantics. The question that may be posed is whether or not there would be any prejudice if instead of calling it “reinvestigation”, the second investigation was termed “further investigation”, which is allowed by the law. Under normal circumstances, if on the basis of fresh evidence a supplementary charge sheet is submitted, for example by adding names of accused person(s) who had not been included in the initial charge sheet, there would be no questioning the legality of the supplementary charge sheet. That clearly is the purpose of section 173 (3B) of the Code. .....Abul Bashar Chowkidar =VS= Abdul Mannan & others, (Criminal), 2016-[1 LM (AD) 541]
Section 173(3B)
Further investigation–
Unless an extraordinary case of gross abuse of power is made out by the investigating agency, the Court should be quite loathe to interfere with the investigation, a field actively reserved for the investigating agency and the executive. The expression 'further investigation' as used in 173(3B) is distinguishable from reinvestigation. Further is additional, more, supplemental. Further investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation. Here in this case in his prayer the petitioner, inter alia, prayed, "........ শুধুমাত্র দরখাস্তকারী আসামী নিজের নামে অর্জিত স্থাবর ও অস্থাবর সম্পদ বিবেচনা নিমিত্তে পূনঃতদন্তে প্রেরনের আদেশদানে আপনার একান্ত মর্জি হয়।" We do not find any provision in the law for holding পূনঃতদন্ত of the case at the instance of the accused person. The point raised by Mr AJ Mohammad Ali can be taken as defence of the case at the time of holding trial. We do not find any substance in this petition. .....Dr Khandaker Mosharraf Hossain =VS= State, (Criminal), 2018 (2) [5 LM (AD) 238]
Section 173(3B)
Neither in the Criminal Procedure Code nor the Criminal Law Amendment Act there is any provision for enabling an accused to make an application for further investigation of the offence.
A Special Judge may, in any case where he deems it necessary, order an investigation. It is only in cases where he finds any ambiguity in the police reports, he may make an order for further materials from the investigation agency.
The Appellate Division held that the purpose for filing the application is to ascertain for what purpose the money was transmitted from Kuwait. This cannot be a subject matter for further investigation of the case at such belated stage. Neither in the Criminal Procedure Code nor the Criminal Law Amendment Act there is any provision for enabling an accused to make an application for further investigation of the offence for the purpose as alleged in the application. What is provided under section 173(3B) is that the investigation officer has been given discretionary power to file a supplementary police report at any time before conclusion of the trial. If he finds further materials against the accused or any other accused persons, he may make such investigation without the intervention of the court. Under the Criminal Law Amendment Act, the Special Judge has been given discretionary power to direct or make for an order of investigation. This power can be exercised at the initial stage of the proceedings. The language used there is that a Special Judge may, in any case where he deems it necessary, order an investigation. It is only in cases where he finds any ambiguity in the police reports, he may make an order for further materials from the investigation agency. On a plain reading of the petition filed by the petitioner, the Appellate Division has noticed that she wants to prove a fact in support of her defence and this is none of the case of the investigation officer to ascertain that fact. It is the defence which enables it to prove a fact in support of its defence and therefore, the application filed by the petitioner is misconceived one. The Appellate Division finds no error in the order of the High Court Division that calls for interference. This petition is accordingly dismissed. Begum Khaleda Zia. Vs. State and another (Criminal) 21 ALR (AD) 53-55
Section 173(3B)-The investigating officer does not require any permission from the court concerned for further investigation and hence after completion of further investigation filing of supplementary charge-sheet does not suffer from any illegality. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115
Section 173(3B)- Under normal circumstances, if on the basis of fresh evidence a supplementary charge-sheet is submitted, for example by adding name of accused person (s) who had not been included in the initial charge-sheet, there would be no questioning the legality of the supplementary charge-sheet. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115
Section 173(3B) Although the initial charge-sl eet was submitted against only one accused person, upon finding prima facie evidence against him, he still remains an accused in spite of the so called "reinvestigation" of the case whereby the petitioner before us has been additionally named an accused, prima facie evidence having been found against him in the subsequent investigation. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115
Section 173(3B)-The investigating officer does not require any permission from the court concerned for further investigation and hence after completion of further investigation filing of supple mentary charge-sheet does not suffer from any illegality. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115
Section 173(38) Under normal cir- cumstances, if on the basis of fresh evidence a supplementary charge-sheet is submitted, for example by adding name of accused person (s) who had not been included in the initial charge-sheet, there would be no questioning the legality of the supplementary charge-sheet. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115
Section 173(3B)-Although the initial charge-sl eet was submitted against only one accused person, upon finding prima facie evidence against him, he still remains an accused in spite of the so called "reinvestigation" of the case whereby the petitioner before us has been additionally named an accused, prima facie evidence having been found against him in the subsequent investigation. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115
Section 173(2)(3B)- Sub-sections (2) and (3B) of section 173 have clearly spelt out about the further investigation and further investigation presupposes a prior police report and that must be by one investigation agency at a time and not by two investigation agencies. State vs Secretary, Ministry of Public Adminis- tration, 67 DLR (AD) 271
Section 173(3B)-Final report-narazi further investigation-The investigation of crime is carried out dehors the mandate contained in the Code containing sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under section 173(3B). Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120
Section 173(3B)-Since the order of discharge neither amounts to an acquittal nor to a final order, the accused can be proceeded against for the same offence on the basis of supplementary report submitted on holding further investigation or on the basis of naraji petition filed by the informant/complainant. It is no longer res integra that the Court, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120
Section 173(3B)-Final report-narazi -further investigation-The investigation of crime is carried out dehors the mandate contained in the Code containing sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under section 173(3B). Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120
Section 173(3B)- Since the order of discharge neither amounts to an acquittal nor to a final order, the accused can be proceeded against for the same offence on the basis of supplementary report submitted on holding further investigation or on the basis of naraji petition filed by the informant/complainant. It is no longer res integra that the Court, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120
Section 176
Section 176 of the Code enables a Magistrate to hold inquiry into a suspicious death. The language used in this section does not depend merely upon the opinion of the police officer but that there should be a further check by a Magistrate to hold an independent inquiry. The object of holding inquiry is to elucidate the facts of unnatural death before there is any reasonable suspicion of the commission of any offence and when such grounds exist, the inquiry comes under Ain of 2013. .....Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]
Section 179(c)- Since in the sequel of the criminal acts of accused Nos. 3 and 4 by way of obtaining signatures of the complainant in blank papers at Jeddah money was withdrawn in Bangladesh, a Criminal Court of competent jurisdiction in Bangladesh can take cognizance in the case in accordance with illustration (c) of section 179 of the Code. Abdus Sattar vs State 50 DLR (AD) 187.
Section- 179(C)
Criminal Acts of accused Nos. 3 & 4 by way of obtaining signatures of the complainant in papers at Jeddah money was withdrawn in Bangladesh- Criminal Court in Bangladesh can take cognizance of the offences. Abdus Sattar Vs. The State & Anr 6 BLT (AD)-144
Section 188-There was no scope to hold that sanction of the Government was mandatory to make inquiry of the offence of the case as per provision of section 188 of the Code. Section 188 of the Code was not applicable to this particular case and rather it was inconsistent with the provision of sections 20(1) and 32 of the Ain, 2004 and sections 4(4) and 6(1) of the Act, 1958. Mafruza Sultana vs State, 67 DLR (AD) 227
Sections 190, 193, 435 and 561A
Sessions Judge can call for the record of a proceeding pending before a Magistrate for purposes mentioned in Section 435 Cr.P.C. but. he has no power to take congizance of an offence as a Court of original jurisdiction and as such he is not competent to initiate a new proceeding — Sessions Judge started a Criminal Miscellaneous Case against a Magistrate upon a telegram containing allegations against the Magistrate in respect of a proceeding pending before the Magistrate — The Sessions Judge acted without jurisdiction and the Criminal Miscellaneous Case is quashed Haripada Biswas Vs. The State and another 2 BLD (AD) 13.
Sections 190, 195 and 196-198-Provi- sions in section 195 like the provisions in sections 196-198 CrPC are exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence under section 190 of the said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 190(l)(b)
Power of a Magistrate to take cognizance against an accused in whose favour the police has submitted the final report — Meaning of the words "Charge Sheet" and "final report" — Ordinarily a charge sheet means a police report in which the police recommends for the prosecution of the accused while a final report means a police report in which no accused is recommended to be prosecuted — If the Magistrate is satisfied that a particular person has been improperly excluded from the charge sheet he may take cognizance against such a person on the basis of a police report even though it is a final report Abdul Awal Vs. Abdul Mannan and another 6 BLD (AD) 328Ref. 19DLR(SC)426.
Section 190, 193
On reading section 190 along with section 193, there is no gainsaying that a Magistrate shall take cognizance of an offence as a court of original jurisdiction and unless he takes cognizance of the offence the accused cannot be committed to the court of session for trial. The word ‘committed’ has been deleted and in its place the word ‘send’ has been substituted. The object of the restriction imposed by section 193 is to secure the case of a person charged with a grave offence. The accused should have been given an opportunity to know the circumstances of the offence imputed to him and enabled him to make his defence. There was a provision for inquiry under Chapter XVIII of the Code and in such inquiry the accused could have taken his defence, but after the omission of the Chapter, no inquiry is held under the present provision of the Code. Even then the power of the Magistrate to take cognizance of the offence as a court of original jurisdiction has been retained. The Sessions Judge can take cognizance of any offence only after the case is sent to him for trial. .....Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]
Sections 190 and 193-The object of the restriction imposed by section 193 is to secure the case of a person charged with a grave offence. The accused should have been given an opportunity to know the circumstances of the offence imputed to him and enabled him to make his defence. There was a provision for inquiry under Chapter XVIII of the Code and in such inquiry the accused could have taken his defence, but after the omission of the Chapter, no inquiry is held under the present provision of the Code. Even then the power of the Magistrate to take cognizance of the offence as a court of original jurisdiction has been retained. The Sessions Judge can take cognizance of any offence only after the case is sent to him for trial. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Sections 190, 193 and 561A Cognizance and Quashment:
The Appellate Division observed that until and unless the Court takes cognizance of the offence there is no legal proceedings pending before any Court of law and there- fore, the High Court Division cannot exer- cise its extraordinary power to quash the proceedings. The Durnity Daman Commis- sion if directed to proceed with the ease in accordance with law. Durnity Daman Commission -Vs.- Engineer Mosharrf Hossen and 2 ano- thers (Criminal) 8 ALR (AD) 80
Section 193-Section 193 provides that except as otherwise expressly provided no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a competent Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.
Section 193
Another point raised in the High Court Division is that the trial of the accused Mufti Abdun Hannan is vitiated by reason of not taking cognizance of the offence by the learned Sessions Judge. The High Court Division relying upon the case of Dharmatar V. State of Horyana, (2014) 3 SCC 306, RN Agarwal V. RC Bansal, (2015) 1 SCC 48, Haripada Biswas V. State, 6 BSCR 83 held that the trial of the accused has not been vitiated for this reason. Section 193 of the Code of Criminal Procedure provides that:
“Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a Magistrate duly empowered in that behalf. (2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Government by general or special order may direct them to try or as the Session Judge of the division, by general or special order, may make over to them for trial.” .....Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]
Sections 195, 476 and 561A
A criminal prosecution launched by a party to a civil suit against the other party alleging offences alleged to have been committed in relation to a proceeding in the Civil Court is not maintainable in law in view of the bar imposed by Section 195(1) Cr.P.C — Only the Court concerned can lodge a complaint before a competent Court — Moreover, so long the decree passed by the Civil Court remains in force it provides a good defence for the accused appellants in the criminal prosecution — Such a proceeding should not be allowed to be continued and should be quashed. Mr. Mahiruddin Mia and others Vs. Rokeya Hossain 5 BLD (AD) 73.
Section 195
There is no legal impediment to file a criminal case even if a civil suit is pending on the selfsame allegations provided the ingredients of the offence are present–– It is a settled principle of law that if there are criminal cases and civil suits between the same parties in respect of the same properties, even then it cannot be a bar to the continuation of the criminal proceeding i.e. the criminal proceeding will run in its own way.
The appeal is thus allowed and the judgment and order of the High Court Division dated 27.03.2008, passed in Criminal Miscellaneous Case No.2033 of 2008 is set aside and the proceedings of C.R. Case No.1966 of 2005 be restored to its original number. ...Mohammad Amir Ali Mostafa =VS= Shah Md. Nurul Alam, (Criminal), 2021(2) [11 LM (AD) 563]
Section 195
Complaint against forged document-
Section 561A- Quashment of proceedings-When no bar—
Section 195 bars taking of cognizance in respect of forged document filed in a Civil, Criminal or Revenue court except upon a complaint lodged by the court concerned. But when the forged document is not filed in any court, section 195 is not bar against taking of cognizance. Therefore the proceedings being competent in law cannot be quashed. Ali Aman and another Vs. The State and another— 5, MLR (2000)(AD) 343.
Sections 195(1) and 234-Since the document allegedly created by Moudud Ahmed has been filed in the suit and the writ petition, those are subject matter of the appeals and the documents have been used by the respondent in judicial proceeding The initiation of the proceeding is barred under section 195(1)(c) of the Code. Chairman, RAJUK vs Manzur Ahmed @ Manzoor Ahmed, 68 DLR (AD) 337
Sections 195(1)(b) and 476(1)
The Code of Criminal Procedure, 1898
Sections 195(1)(b) and 476(1)
The Penal Code, 1860
Section 211
False complaint– It is Appellate Division’s view that in the event of a case under special law, any written complaint can be filed by anyone, since it is invariably a cognisable offence, but should not be acted upon without taking proper precautions, as is, for example, required under section 195(1)(b) read with section 476(1) of the Code of Criminal Procedure for a case to proceed under section 211 of the Penal Code. It is also noted that the informant of the original case has been left out of the charge by the Tribunal framing charge only against the witnesses. This Division can only endorse the view of the High Court Division that prolonging this type of case any further would be an abuse of the process of the Court. .....A. K. Azad @Baira Azad =VS= Md. Mostafizur Rahman, (Criminal), 2022(1) [12 LM (AD) 650]
Sections 195 & 476-Section 476 is not independent of section 195 of the Code-Section 476 does not abridge or extend the scope of section 195(b) or (c). Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(b)-Proceeding in Court-In view of the decision that a Magistrate acts his judicial capacity while discharging an accused on the basis of a final report by the Police and the reasonings in the majority judgment in 1979 AIR (SC) 777, the offence under section 211 Penal Code was committed in relation to a proceeding in Court and, as such, the bar under section 195(1)(b) is attracted. Serajuddowla vs Abdul Kader 45 DLR (AD) 101.
Section 195(1)(b)- Complaint of Court- Requirement-When the Magistrate considered the prayer of the Investigating Officer that he appellant be prosecuted for making a false charge and the prosecution report upon which cognizance was taken shows that the same was filed as directed by the Magistrate it is clear that the prosecution of the appellant was sanctioned by the Magistrate himself and, as such, it could not be said that the cognizance was taken in violation of section 195(1)(b). Serajuddowla vs A Kader 45 DLR (AD) 101.
Section 195(1)(c)- The view taken in AIR 1943 Nagpur 327 "all the High Courts are now agreed that once a forged document is brought then private complaints subsequent to this are barred by section 195 even in respect of anterior forgeries anterior, that is, to the litigation"-has been consistently followed in 20 DLR Dhaka 66 & other cases. Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(c)-Legislature did not intend any anomalous situation that might arise if the trial of one offence may be made dependent upon a possible complaint by the Court while the other offence is tried upon a private complaint. Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(c)-Jurisdiction of a criminal Court when barred. Which Court is empowered to take cognizance of offences in the section 195(1)(c) Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(c)- No cognizance can be taken against one of the appellants who appears to have forged the document expect on complaint by the Court. Abdul Hai Khan vs State 40 DLR (AD) 226.
Section 195(1)(c)- Stay of proceeding-In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102.
Section 195(1)(c) and (4)- Ambit of sub- section (4) of section 195 CrPC-It is therefore clear that the offences referred to in cl.(c) when committed in pursuance of a conspiracy or in the course of the same transaction, will fall within the ambit of sub-section (4) of section 195 including their abetments or attempts independent of the dates of their commissions. Abdul Hye Khan vs State 40 DLR (AD) 226.
Sections 195(1)(c) and 476-Restricted application of clause (c) to be discarded-1 am, therefore, inclined to think that reading clause (c) with section 476 of the Code, there does not seem to be any compelling reason to restrict the applica- tion of the said clause limiting the control of the Court only to few offences committed (pendente lite) as would be the practical result of such interpretation. The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding. Abdul Hye Khan vs State 40 DLR (AD) 226.
Sections 195(1)(a)(b)(c) and 476-There is specified procedure and method for filing com- plaint by a Court in respect of offences described in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of section 195 CrPC. Abdul Hye Khan vs State 40 DLR (AD) 226.
Section 195 (1)(c)
The Code of Criminal Procedure, 1898
Section 195 (1)(c) r/w
The Penal Code, 1860
Sections 471/475/476
Share certificate are forged and has no value in the light of the expert report–
In the light of the expert report with regard to the thumb impression appearing on the document of transfer of shares and considering the fact that the document prima facie appears to have been forged, we hereby direct Mohammad Mehdi Hasan, Deputy Registrar, Supreme Court of Bangladesh to lodge a complaint, before a Magistrate of the first class having jurisdiction, against the appellants, namely Reza Bin Rahman and Abdul Wahab Azad in terms of section 195 (1)(c) of the Code of Criminal Procedure for committing an offence punishable under sections 471/475/476 of the Penal Code. …Reza Bin Rahman =VS= A.T.G. Mortaza, (Civil), 2019 (2) [7 LM (AD) 8]
Section 195(1)(C)
When a direct criminal case is barred—
Section 195(1)(C) of the Code of Criminal Procedure, 1898 is not attracted when the accused is charged for the offence under sections 467, 409 and 420 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. Sadat Ali Talukder Md Vs. the State and another- 4, MLR (1999) (AD) 223.
Section 195(1)(C)
Whether subsection 1 (c) of Section 195 Cr P C has been superseded by the Criminal Law Amendment Act. 1958 —
The provision for complaint from Court as envisaged by Section 195(1)(C) Cr.P.C. has not been specifically done away with and as such the general provision of the Code remains unaffected — When an offence within the meaning of the Code is committed in or in relation to a proceeding before a Court, then the complaint shall have to be filed bv that Court — The provision for taking cognizance of an offence on a complaint from the Court has remained unaffected and as such if an offence falls within the ambit of Section 195(I)(C) Cr P C then cognizance can not be taken except upon a complaint from the Court — The Criminal Law Amendment Act, 1958 (Act XL of 1958) Md. Muslim Khan Vs. The State 6 BLD (AD) 164.
Section 195(1)(c)
When the certified copy of a deed was produced on a claim that the deed was forged and the original copy was not produced, then it was not possible to determine the genuineness of the certified deed.
It appears to the Appellate Division that the certified copy of the disputed deed being No. 19974 dated 31.10.2005 was produced before the Court, not the original copy of the deed. Only the production of the certified copy of the alleged deed cannot attract the provision of Section 195(1)(c) of the Code of Criminal Procedure, 1898. To attract the provision of Section 195(1)(c) of the Code, the original copy of the deed should have been produced before the Court, because the genuineness of the said claim i.e. the alleged deed is a forged deed and the involvement of the accused persons in the creation of the forged deed is subject to proof by examining the witnesses. When the certified copy of a deed was produced on a claim that the deed was forged and the original copy was not produced, then it was not possible to determine the genuineness of the certified deed. So, the proceeding of C.R. Case No. 1966 of 2005 is not barred under Section 195 of the Code of Criminal Procedure. Mohammad Amir Ali Mostafa - Vs. Shah Md. Nurul Alam and others (Criminal) 23 ALR (AD) 87
Section 197
If a public servant committed any offence or alleged to have been committed by him while acting or purporting to act, in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Government– The cognizance taking the order of the Additional Chief Judicial Magistrate dated 06.08.2019 in C.R. Case No.597 of 2019 against Shafiqul Azam, who is the Assistant Engineer, Zilla Parishad Kushtia, Md. Moniruzzaman, Surveyor of the Zilla Parishad, Kushtia and Md. Shanuzzaman Shahin, Administrative Officer of the Zilla Parishad Kushtia is set aside. The learned Additional Chief Judicial Magistrate is directed to take step to accord sanction for prosecuting them as per provision under section 197 of the Code of Criminal Procedure from the Government and, thereafter, to take necessary step in accordance with law. ...Shafiqul Azam =VS= Deputy Commissioner(DC), Kushtia, (Criminal), 2021(2) [11 LM (AD) 141]
Section 197
No court shall take cognizance of the offence against a public servant under Section 25B(1) of the Special Powers Act, 1974 without the prior sanction of the Government under Section 197 of the Code of Criminal Procedure, AIR 200 SC 2952 paragraphs 17-19): Section 197(1) of the Code does not impose any absolute ban against taking cognizance of the offence, but it only says that the sanction contemplated therein is a condition precedent for taking such cognizance. It obviously is for preventing public servants from being subjected to frivolous prosecutions for discharging their official duties. Md. Abdul Basit-Vs.-The State 1 ALR (AD)160
Section 197-The evidence of the witness including the report of the inquiry held by a Magistrate leads to irresistible opinion that the offence alleged has not been committed by the accused in the discharge of their official duties and, as such, we do not find any force in the submission of the learned Advocate as to applicability of section 197 of the Code regarding the two petitioners. ASI Md Ayub Ali Sardar vs State 58 DLR (AD) 13.
Section 199
Offence U/S 497/498 — Section 199 Cr. P. C. provides for leave of the Court to lodge complaint when any person other than the husband, having care of the wife on behalf of the husband at the time when offences under Section 497 and 498 P.C. was committed. Any such complaint without such leave is to maintainable. There must be an application for leave to lodge the complaint and material to show that it granted. Leave to lodge the complaint cannot be presumed or implied. Reference in his regard may be made to the decision in AIR 1933 Cal. 880. Md. Mohsin Ali Khan Vs. Shams-F-Ara Binte Huda & Ors. 11 BLT (AD)-10
Sections 200, 202, 204 and 205C-Juris- diction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Ses- sions Judge has jurisdiction to direct the Magis- trate to send the case to him after its dismissal by the Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.
Sections 200 & 561A-The purpose of examination of the complainant under section 200 CrPC is to see whether is sufficient ground for proceeding and not whether there here is sufficient ground for conviction. Whether the evidence is adequate for supporting conviction can only be determined at the trial and not at the stage of enquiry. Allegations made in the petition of complaint having made out a prima facie case of cheating against the accused-appellant, it is not a fit case to quash the proceeding at the present stage. SA Sultan vs State 44 DLR (AD) 139.
Sections 200 and 202
Section 200 of the Code provides for examination of the complainant on oath by the Magistrate before taking cognizance of an offence.
Section 202 of the Code authoreses the Magistrate to postpone issue of process for the purpose of ascertaining the truth or falsehood of the complaint by way an inquiry or investigation. The legal position that follows from sections 200 and 202of the Code of Criminal Procedure is that a Magistrate or for that matter the Chief Metropolitan Magistrate is not bound to take cognizance of an offence straight away on a petition of complaint filed before him. He can very well send the petition of complaint to the police for investigation and if the allegations are found found to be true, he may direct the police to record on FIR against the accused under appropriate section(s) of law. Muhammad Ismail-Vs.-Md. Rafiqul Islam and others 2 ALR (2013)(AD) 218
Sections 200 and 202
The impugned Judgment and order of the High Court Division sending the case back to the Chief Metropolitan Magistrate, Chittagong for complianceof the requirements of Section 200, Cr.P.C. thereby suspending the proceding of the case now pending before the learned Additional Metropolitan Sessions Judge, Chittagong is not sustainable in law as the complainant was earlier examined on oath in the C.R. Case by the Metropolitan Magistrate first and then again by him during the Judicial Enquiry. The Chief Metropolitan Magistrate then received the said judicial enquiry report and being satisfied took cognigance of the offence, issued the process and transmitted the case record to the Metropolitan Sessions Judge for disposal. The Judge concerned was directed to proceed with the case from the stage at which it was stayed by the High Court Division. Muhammad Ismail -Vs- Md. Rafiqul Islam and others 1 ALR (AD)155
Section 200, 156(3), 561A
Complaint and police investigation—Once cognizance is taken complaint can not be sent for police investigation—
The Magistrate may without talcing cognizance send a petition of complaint to the police for holding investigation treating the same as F.I.R. in a cognizable case under section 156(3). But once he takes cognizance under section 200 he can not direct the Police to treat the petition of complaint as an F I. R. and hold investigation on the basis thereof. Yakub Ali Vs. The State Section 339c— 1, MLR (1996) (AD) 58.
Sections 202 and 203
Dismissal of a complaint — Its propriety — The main ground cited by the Magistrate for dismissal of the case is that the police submitted charge-sheet in the case arising from the same occurrence — This is palpably wrong — The Magistrate must)nfine himself to the evidence on record oduced before him and if on such evidence a prima facie case is made out he ill issue process Bangladesh Vs. Yakub irdar and others 8 BLD (AD) 180
Sections 203, 205(1) and 436
Magistrate can not be directed to take cognizance—
When a complaint has been dismissed under section 203 neither the Sessions Judge nor the High Court Division can direct the Magistrate to take cognizance of the offence and issue process under section 205(1). They can only direct further enquiry under section 436, the matter of taking cognizance absolutely resting with the Magistrate on the result of further inquiry. Yusuf Hasan Vs. KM. Rezaul Ferdous— 1, MLR (1996) (AD) 102.
Sections 203 and 439A-Whether the Sessions Judge has got power under section 439A, Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 of the Code. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.
Sections 203, 205(1) & 436-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 com- plaint under section 203 CrPC the informant res- pondent's 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 204(3), 435 and 436-Provisions under which Courts are competent to direct the Magistrate. The Sessions Judge and, for that purpose, the District Magistrate, Chief Metropo- litan Magistrate and the High Court Division, got power under section 435 CrPC to call for the record of any case pending before any Magistrate and direct the Magistrate under section 436 to make further enquiry into any complaint which has been dismissed under section 203 or sub- section (3) of section 204 CrPC. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.
Section 205C(a)-It is a mandatory provision that the accused must be 'sent' for trial by the Magistrate. The taking cognizance of the offence by a Session Judge is not so material. The material fact is that the Magistrate empowered to take cognizance must 'send' the case to the Court of Session under section 205C(a) of the Code after taking cognizance and performing formalities, and then only the question of taking cognizance of offence by the Court of Session comes into play. The question of taking cognizance does not arise in this case for the second time. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Section 205C-Police have already submitted charge-sheet against the accused and therefore, no further investigation is necessary into the allegations made in the FIR. We direct the Commission to transmit the record if the record has not been transmitted in the meantime along with the police report to the court of Chief Metropolitan Magistrate for passing necessary orders in accordance with law. The learned Magistrate shall examine the record of the case and if he finds that a prima facie offence is disclosed, he shall proceed with the case in accordance with section 205C of the Code. Yunus (Md) vs State, 68 DLR (AD) 109
Section 205D(3)
Simultaneous trial of the accused persons in the complaint case and police case– The procedure to be followed in this case is that the Druta Bichar Tribunal No. 2 shall hold simultaneous trial of the accused persons in the complaint case and shall dispose of the cases in accordance with sub-section (3) of section 205D which is equally applicable to it. It shall conclude the trial of the police case first and postpone the delivery of the judgment till the trial of the complaint case is concluded and then it will decide which accused persons are involved in the killing of the victim and shall deliver judgment accordingly. If the court finds one set of accused persons or any one of them is involved in the killing it shall acquit the accused persons in the other case. The judgment of the learned Sessions Judge and the High Court Division are set-aside. We direct the Chief Metropolitan Magistrate to transmit the case record to the Druta Bichar Tribunal No.2 Dhaka for simultaneous trial of the case with Druta Bichar Tribunal Case No.2 of 2010. The Druta Bichar Tribunal shall use the post-mortem report and other alamats seized in the police case in this case also. .....Siddiqur Rahman (Md) =VS= SM Maola Reza, (Criminal), 2022(2) [13 LM (AD) 430]
Section 205D
Trial of cases instituted on complaint and on police report on the same matter—
Both the cases, one instituted on complaint and the other on police report on same matter shall be tried together as if instituted on a police report. Mokhlesur Rahman Vs. Rabeya Parvin Chowdhury and others- 4, MLR (1999) (AD) 260.
Section 205D
Under section 205D Cr.P.C. both the cases, one instituted on police report and the other on complaint on the self-same occurrence, shall be tried by the Magistrate in the same trial treating both the cases as if instituted on a police report. .....Enayet Chowdhury(Md.) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 554]
Sections 205D and 417 read with Penal Code [XLV of 1860]
Sections 34 and 306-Since a police case and a complaint case over the self- same proceeding were filed against the same accused persons and police report has been submitted in the police case, both the cases would be deemed to have been instituted on a police-report.
The Appellate Division held that when there is a wrong there must be a remedy. 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 Magi- strate, Dhaka in G.R. No. 495 of 2001 but inadvertently he filed an appeal. On the facts and in the circumstances of the case, Appellate Division is of the view that the memo of appeal may be treated as a revi- sion and the learned Sessions Judge or any other Court shall dispose of the revision in accordance with law. Accordingly, this criminal appeal is disposed of and the memo of appeal filed in Criminal Appeal No.21 of 2003 be treated as revision and the learned Sessions Judge or any other competent Court is directed to hear the re- vision against the order of conviction. Md. Enayet Chowdhury and others. - Vs.- The State (Criminal) 10 ALR (AD) 234-236
Section 205D(1)(2)(3)-When there is a complaint case and a police case over the selfsame occurrence against some persons as accused, the proceeding of the complaint case would be stayed giving way to the police to conclude the investigation of the case and if the police report does not relate to all accused persons in the complaint, the Magistrate shall hold an inquiry into the complaint and upon such inquiry, he shall proceed with the trial of both the cases analogously as if the complaint was made with police or send the case to the Court of Sessions if the offences are triable by the Courts. In such a case, both the cases are deemed to be instituted on a police report. But according to sub-section (3) if the police report does not relate to any accused in a complaint case, the Magistrate shall proceed with the inquiry and trial which was stayed by him in accordance with the provisions of the Code. Enayet Chowdhury (Md) vs State, 70 DLR (AD) 22
Sections 205D(1)(2) and 439-Memo of appeal may be treated as a revision and the Sessions Judge or any other Court shall dispose of the revision in accordance with law. Enayet Chowdhury (Md) vs State, 70 DLR (AD) 22
Sections 205D and 340-Inquiry or trial When a complaint is instituted, it is found to the Magistrate in course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is the subject matter to inquiry or trial, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report from the police officer conducting investigation.
If the Magistrate finds that he has taken cognizance of the offence pursuant to a police report against any person who is in the complaint case, the Magistrate holding inquiry into the case shall try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. However, if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report which shall proceed with the inquiry or trial of the complaint case.
The Appellate Division held that the accused persons involved in the police case are not included in the complaint case, and therefore, the Magistrate is left with no option other than to hold the inquiry under sub-section (3) of section 205D and upon such inquiry he finds prima-facie case against the accused persons and has taken cognizance of the offence. Non- performance of the procedures provided in sub-section (1) shall not be a legal ground to quash the proceeding, inasmuch as, there was no scope on his part to follow the said procedure since the complaint has been filed after the completion of the investiga- tion. The trial of the case shall be held in accordance with sub-section (3) of section 205D. Since the trial of the police case has been undergoing, the trial of the complaint case shall be held simultaneously. There is no ambiguity in the provisions of law. More so, by addition of sub-section (3) of section 340, an accused person can now depose in support of his defence on oath in disproof of the charge made against him or any person charged together with him at the same time. Md. Siddiqur Rahman -Vs.- S.M. Maola Reza and others (Criminal) 16 ALR (AD) 33-35
Sections 221 and 222-Object of framing of charge-The object of framing a charge to enable an accused person to known the substantive charge which he will have to meet at the trial. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Sections 222(2) 234 read with Criminal Law Amendment Act[XL of 1958]
Section 6 (1B) A person accused of more offences than one punishable under this Act, may be tried at one trial for all such offences.
The provisions of Section 222(2) read with Section 234 (1) require that if there are more than one offences committed over a period of more than 12 months then the offences may not be charged in one charge, whereas Section 6 (1B) provides that any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. Clearly, therefore, the provision in the Criminal Law Amendment Act is not consistent with the provision of the Code of Criminal Procedure thereby ousting the applicability of the provisions of the Code in proceedings before the Court of Special Judge. Hence, all the offences committed over any length of period of time could be tried in one trial upon framing one charge. The State Vs. Md. Ibrahim Ali 3 ALR(2014)(1)(AD) 199
Section 222-Merely because charge has been framed against the accused, the case is not proved against him and it is the prosecution which has to prove its case beyond reasonable doubt, and the accused shall have all the right to take his defence by cross-examining the prosecution witnesses and also by examining his own witnesses, if he so desires. Ahmed Lal Mia vs State, 66 DLR (AD) 204
Sections 222(2) and 234(1)-Any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. All the offences committed over any length of period of time could be tried in one trial upon framing one charge. State vs Md Ibrahim Ali, 66 DLR (AD) 33
Sections 227(1)(2)-If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronounce- ment of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. State vs Md Ibrahim Ali, 66 DLR (AD) 33
Sections 227, 228, 231, 232 and 537
Defect in framing of charge cannot be a ground for acquittal of the accused. The only time when any proceeding can be quashed for material error in the framing of charge is when the Court forms the opinion that the facts of the case are such that no valid charge could be framed against the accused in respect of the facts proved. Section 232 of the Code of Criminal Procedure provides that even where an accused convicted of an offence was misled in his defence by absence of a charge or by an error in the charge, the Appellate Court or the Revisional Court shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. Thus, if ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgement, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. ...The State =VS= Ibrahim Ali(Md.), (Criminal), 2021(1) [10 LM (AD) 385]
Section 227
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 25 and
Code of Criminal Procedure, 1898
Section 227
The laws of procedure are devised for advancing justice and not impeding the same. The main object and purpose of enacting procedural laws is to see that justice is done to the parties. The Ain contains no provision relating to framing of charge. Hence, in view of Section 25(1), the provisions of the Code which relate to framing of charge are applicable to the Ain. Section 227 of the Code clearly mentions that Any Court may alter or add to any charge at any time before judgment is pronounced. In view of this section it becomes very clear that the High Court Division as the appellate authority in the present case has the power to alter the charge framed by the Tribunal and convict the accused on the same. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1
Section—227
The Court may at any time alter or amend any charge during the trial in accordance with section 227 Cr.P.C. Hussain Mohammad Ershad Vs.The State, 14 BLD (AD) 161
Section 227
Nari-O-Shishu Nirjatan Daman Ain, 2000 [VIII of 2000]
Sections 7,9(1) and 30 The victim declined to be examined medically she admitted in her cross-examination that she met and talked to the inmates of the house including a sister of the accused and her husband as well as other persons who visited the house. When she was taken to another village, she stated that people asked her questions. There is no mention that she complained to them about her abduction or rape. The informant alleged to have narrated the occurrence first of all to one Rokeya Begum, a neighbour who was not examined by the prosecution in the absence of any reason for not calling her as a witness a negative inference can drawn against the prosecution for not examining her. The State -Vs. Md. Palash 5 ALR (AD)2015(1) 84
Section 227
An important aspect of criminal trial cannot lead to acquittal of the accused merely on the ground of technical defect. Section 227 of the Code provides as follows:-
"Court may alter charge.-
(1) Any Court may alter or add to any charge at any time before judgement is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
The State Vs. Md. Ibrahim Ali 3 ALR(2014)(1)(AD) 199
Section 228
The Court can proceed with the trial even on the day of amending the charge or adding any new charge if it would not prejudice the accused in his defence. The State -Vs. Md. Ibrahim Ali 3 ALR(2014)(1)(AD) 199
Section 231
As per provision of section 231 of the Code of Criminal Procedure if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case but in this case, the charge has been altered and two of the accused persons were made approvers and they are examined as PWs. In such circumstances, it was reasonable to allow the accused petitioner to re-examine the witnesses. This petition is disposed of. The prayer of the petitioner so far the same relates to recalling the PWs 1 to 5 and 8 are allowed. The prayer in respect of direction to Public Prosecutor to issue certificate regarding the evidence of approvers is rejected. .....Gias Uddin al-Mamun (Md) =VS= State, (Criminal), 2018 (2) [5 LM (AD) 244]
Section 231-The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case. Gias Uddin-al-Mamun (Md) vs State, 70 DLR (AD) 123
Sections 231 and 540-As per provision of section 231 of the Code if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. Gias Uddin al-Mamun (Md) vs State, 70 DLR (AD) 123
Section 231-The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case. Gias Uddin-al-Mamun (Md) vs State, 70 DLR (AD) 123
Sections 231 and 540-As per provision of section 231 of the Code if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. Gias Uddin al-Mamun (Mil) vs State, 70 DLR (AD) 123
Section 232
If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgement, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. The State Vs. Md. Ibrahim Ali 3 ALR(2014)(1)(AD) 199
Sections 233 & 234
The Penal Code, 1860
Sections 409/420467/468/471 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
Code of Criminal Procedure, 1898
Sections 233 & 234
Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is specific allegation of misappropriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropriation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this section is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. .....Bashir Ahmed =VS= DC, Magura, [3 LM (AD) 541]
Section-233 r/w Section-239
"Same transaction" and the persons involved in the incidents are "accused of the same offences"
In the instant case it is the prosecution case that petitioner and others encircled the house of the victims and thereupon from amongst the persons who encircled the house of the victims the petitioner and some others entered into the hut wherein the victims — the element of continuity of action was also present in the instant case in that the petitioner and others encircled the house of the victims and that thereafter petitioner and some others entered into the hut of the victims and caused injuries by sharp cutting weapons in consequence whereof the death occurred. In this state of the matter it can in no way be said that the offences or in other wards causing death of the two persons by the petitioner and others was not committed or done in the course of the "same transaction" or in one transaction. Delower Hossain Khan Vs. The State 11 BLT (AD)-12
Section 233-The element of continuity of action was also present in the instant case in that the petitioner and others encircled the house of the victims and that thereafter petitioner and some others entered into the hut of the victims and caused injuries by sharp cutting weapons in con- sequence whereof the death occurred. In this state of the matter it can in no way be said that the offences or, in other words, causing death of the two persons by the petitioner and others was not committed or done in the course of the "same transaction" or in one transaction. Delower Hossain Khan vs State 54 DLR (AD) 101.
Sections 234 and 561A-The contention that there cannot be three separate cases out of single transaction and the petitioners cannot be put on trial in three separate cases arising out of one transaction is of no substance. Abul Fazal (Md) alias Abul Fazal alias Badal vs State 53 DLR (AD) 100.
Section 234- While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code. This observation is made through overlooking sub-section (IB) of section 6 of the Act, 1958. The observation is expunged. Manzur Ahmed vs Government of the People's Republic of Bangladesh, 70 DLR (AD) 155
Sections 234 and 239, 535 and 423(b) (2)- An accused person can be convicted of a particular offence only if he was charged with the same. The ordinary rule that the accused cannot be convicted of any offence with which he is not charged is circumscribed by exceptions. The power of the appellate court under section 423(b)(2) is, however, subject to the condition that the appellate court cannot enhance the sentence imposed by the trial court. (SK SINHA, JAGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Sections 235 and 239-Whether a series of acts are so connected together as to form the part of the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formula of universal appli- cation cannot be framed regarding the question whether two or more acts constitute the same transaction. The circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. A transaction may be continuous one extending over a long period and two places. The expression "part of the same transaction" must be understood as including both immediate cause and effect of an act or even also its collocation or relevant circumstances. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490
Sections 235(2)/236/403
Anti-Corruption Commission Act, 2004
Sections 26 and 27(1)
The Income Tax Ordinance, 1984
Sections 165 and 166
The Code of Criminal Procedure
Sections 235(2)/236/403
The Anti-Corruption Commission of offence where the wealth of a person is found not in proportionate to his known sources of income. The intention of the legislature behind the enactment of ACC Act, 2004 is prevent corruption–– It has been held that the Income Tax Ordinance is purely a law relating to prevention of tax evasion and realization of income tax, which is completely distinct offence unlike the present one which relates to corruption. ––It is evident that the offences under Sections 26 and 27(1) of the ACC Act, 2004 and Sections 165 and 166 of the Income Tax Ordinance, 1984 are completely separate and distinct and one is not dependant on others. Therefore, the present case under Sections 26 and 27(1) of the ACC Act, 2004 shall proceed independently. Although the petitioner was earlier acquitted in a case under Sections 165 and 166 of the Income Tax Ordinance, 1984 it will not put any embargo on the trial of the present case. .....Mirza Abbas Uddin Ahmed =VS= The State, (Criminal), 2022(2) [13 LM (AD) 643]
Sections 235-237 and 403-When facts of the case are such that it is doubtful which of the several offences has been committed the accused may be charged with having committed all or any of such offences; and after trial for one such offence the accused may be convicted for the other offence even though he was not charged thereof In the instant case "robbery" and "un- authorised possession of fire arms" are not offences of the same nature contemplated in sec- tions 236 and 237 (1) CrPC, but these are two distinct offences for which a person may be charged for each of them as provided in section 235(1) CrPC. Arfan Ali vs State 42 DLR (AD) 22.
Sections 236, 237, 238 & 337-The accused raised no objection on the score of defect in charge at any stage of the trial. The objection raised for the first time in the Appellate Division is not entertainable by virtue of explanation appended to section 537 of the Code of Criminal Procedure. Rajib Kamrul Hasan vs State 53 DLR (AD) 50.
Sections 236 & 237-When an accused is charged under sections 302 and 134 Penal Code his conviction under section 201 Penal Code is legal. Kalu vs State 45 DLR (AD) 161.
Sections 236, 237, 238, 417 and 423-A finding of acquittal can be converted into one of conviction only in an appeal under section 417 which being in accord with section 423 CrPC is the correct view taken in Bawa Singh's case. Mofizuddin vs State 40 DLR (AD) 286.
Sections 236 and 237
Accused charged under Sections 302/34 of the Penal Code but convicted under Section 201 of the Penal Code — Whether legal — Although the accused persons were charged under Sections 302/34 of the Penal Code yet their conviction under Section 201 of the Penal Code is valid in law, though no charge under Section 201 of the Penal Code was framed against them — Penal Code (XLV of 1860) Ss. 201 and 302 /34 Kalu and another Vs. The State 1 BLD (AD) 299 Ref. 26 Cr L.J. 1050.
Sections 236, 237 and 403
Prohibition against double jeopardy — The second trial which the appellant is now facing is with respect to different offence — Since they occurred during the same transaction or arose from the same facts, the appellant should have been charged for all such offences in the previous trial. Sultan Mahmudul Hossain Vs. The State 5 BLD (AD) 203.
Sections 237 and 238-Even where a charge was framed against an accused person in respect of an offence, he may be convicted for lesser offence provided the case attracts section 237 and 238 of the Code. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Section 237-In view of the provisions of section 237 of the Code of Criminal Procedure the conviction of the petitioner under section 381 is maintainable although he was charged under section 408 but not under section 381 of Penal Code.
Section 238-An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence.
Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offen- ce to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman vs State 51 DLR (AD) 33.
Section 238
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 11(Ka)/30
Penal Code
Section 302 and
Code of Criminal Procedure, 1898
Section 238
In section 238 of the Code, it has been provided that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and such combination is proved, he may be convicted of the minor offence though he was not charged with it. The section further provides that when a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted for commission of minor offence, although he is not charged with it. In the present case although the accused were charged with the offence of murder for dowry under Sections 11(Ka)/30 of the Ain, on the proven facts they were convicted for the offence of murder only under section 302/34 of the Penal Code. In terms of punishment, it is very much clear that an offence under Section 11(Ka) of the Act is graver than an offence punishable under section 302 of the Penal Code. Hence, an offence under section 302 of the Penal Code can be considered as a minor offence than that of an offence under Section 11(Ka) of the Ain and therefore, framing of charge was not required for conviction. ...The State Vs. Nurul Amin Baitha and anr, (Criminal), 18 SCOB [2023] AD 1
Section 238
The alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Alteration of the conviction under Section 342/34 of the Penal Code cannot be legally and lawfully done while disposing of an appeal arising from the; jurisdiction of the Special Tribunal under Section 30 of the Act. Abdur Rahman & Ors. Vs. The State 7 BLT (AD)-225
Section 239-Mis-joinder of charges- Validity of trial-In a case where it is found that the trial is vitiated by misjoinder, then in the eye of law there has been no valid trial and therefore an accused cannot be acquitted after setting aside conviction. State vs Constable Lal Mia 44 DLR (AD) 277.
Section 239-Joinder of charges-Sameness of transaction-Circumstances which must bear on the determination whether certain acts or events constitute a single transaction in each individual case are proximity of time, proximity of place, continuity of action and community of purpose or design. Which factor or factors shall be given relative importance depends on the facts of each case. State vs Constable Lal Mia 44 DLR (AD) 277.
Sections 239 & 537-Sameness of tran- saction-Defect-If there is good evidence that the transaction was one and the same, then mere absence of certain links in the accusation will not make the trial illegal. If at all it is a defect which is curable under section 537 CrPC. State vs Constable Lal Mia 44 DLR (AD) 277.
Section-241
Discharge of accused.
Facts stated in the application under Section 241A of the Code of Criminal Procedure praying for discharge are nothing but defence pleas and these cannot be considered at the time of framing of charges. In such view of the matter, the learned Sessions Judge committed no illegality in summarily rejecting the accused-petitioner's revisional application u/s 439A of the Code. The High Court Division was also perfectly justified in summarily rejecting the petitioner's application u/s 561A of the Code of Criminal Procedure. Syed Abu Siddique -Vs. The State 2 ALR (2013) (AD) 62
Section 241A-Magistrate cannot discharge accused persons on the plea of alibi that they were at different places at the time of commission of offences alleged by the prosecution-Magistrate's "finding" in this regard is based on no evidence. Mere submission of some papers supporting alibi is neither sufficient nor admissible as the stage of adducing defence evidence was not yet come. Magistrate's order of discharge was not sustain- able as it was based on gross misconception of law. Nannu Gazi vs Awlad Hossain. 43 DLR (AD) 63.
Sections 241A, 265C & 561A-An accused can only prefer an application under section 561A for quashing the proceeding if he becomes previously unsuccessful in his application either under section 265C or 241A, otherwise his appli- cation for quashing shall be premature.
Section 265C speaks of discharge of an accused in a trial before Court of Sessions. Section 241A speaks of discharge in a trial by a magistrate. These sections indicate that when an accused is brought for trial before a Court of law the Court upon hearing the parties and on consideration of the record of the case and the documents may discharge the accused. These sections have nothing to do with quashing of a proceeding. Section 561A is an independent inherent power of the High Court Division of the Supreme Court and this power can be exercised in case of abuse of process of Court and for securing the ends of justice and or to give effect to any order under the Code ref. Latifa Akhter vs State 51 DLR (AD) 159.
Section 241A
It empowers the Magistrate to discharge the accused without framing any charge if he considers the allegations to be groundless — The provision in Section 241A is not altoghether new in the Code of Criminal Procedure. Previously Section 253(2) Cr.P.C. provided for discharge of an accused without framing any charge if the Magistrate considered the allegations groundless — Section 241A Cr.P.C. has been brought in by amendment by Ordinance No XL of 1982 — By this and other Ordinances, procedure for trial of summons cases by the Magistrate was made applicable to trial of all cases by Magistrates abolishing the distinction between erstwhile summons cases and warrant cases. Nannu Gazi Vs. Awlad Hossain and others 11 BLD (AD) 110
Section 241 A
Discharge of accuseds— When improper—
Discharge of accused under section 241A of the Code of Criminal Procedure is not proper when there are primafacie materials on record for framing charge. Magistrate is bound to proceed with the trial of the case when the discharge order is setaside by Additional Sessions Judge in exercise of his revisional jurisdiction. The learned Additional District Magistrate discharging the accused again ignoring the order of the learned Additional Sessions Judge can well be subjected to proceedings calling upon him to explain his conduct. Swendra nath Goswami Vs. Helena Herlovi and others— 2, MLR(1997) (AD) 249.
Section 241A / 265-C
Discharge of accused—Accused cannot be discharged under section 241A / 265-C of the Code of Criminal Procedure, 1898 when there are primafacie ingredients of the offence alleged to stifle the prosecution before trial. The nature of offence can well be thrashed out in the trial. Mozibul Plaque (Gazij and others Vs. Ahid Hossain Babu.-— 5 MLR (2000) (AD) 63.
Section 241A, 561A
মানিলন্ডারিং প্রতিরোধ অধ্যাদেশ, 2008
Section 2(V)(A)(Av)
মানিলন্ডারিং প্রতিরোধ আইন, 2002
Section 13
The Code of Criminal Procedure, 1898
Section 241A, 561A
It is a settled proposition that a criminal proceeding cannot be quashed on the basis of defence materials before admitting the same as evidence in the course of trial.
We are of the view that the High Court Division after hearing both the parties and on perusal of the materials on record rightly found that the claim of the petitioner as to her ignorance about the alleged transaction involves question of fact which cannot be decided at this stage. We further hold the view that an accused cannot be discharged when there are prima facie ingredients of the offence alleged to stifle the prosecution before trial and that the nature of offence can well be thrashed out in the trial. This criminal petition for leave to appeal is dismissed. ...Mafruza Sultana =VS= State, (Criminal), 2020 [9 LM (AD) 370]
Section 241A
When a competent Court or Tribunal takes cognizance of an offence, then it can be said to be pending and at that stage, the accused has to exhaust all the procedures he is entitled to, before making application for quashment of the proceeding.
The Appellate Division held that as the learned Metropolitan Magistrate took cognizance against the respondents No. 1- 3, they should have filed application under Section 241A of the Code of Criminal Procedure for discharge. Fact remains charge was not framed against the respondents till filing of the Criminal Miscellaneous Case No. 2033 of 2008. Without exhausting the procedure the respondents were not entitled to make application for quashment of the said criminal proceeding. Mohammad Amir Ali Mostafa-Vs. Shah Md. Nurul Alam and others (Criminal) 23 ALR (AD) 87
Sections 241A and 561A
It is a settled principle of law that if there are criminal cases and civil suits between the same parties in respect of the same properties, even then it cannot be a bar to the continuation of the criminal proceeding i.e. the criminal proceeding will run in its own way.
The Appellate Division is of the view that only because of the subject matter of the criminal case and civil litigation being the same, it will not be a bar for continuation of the criminal proceeding, rather the criminal case will run in its own way. In this case, the respondents should have exhausted the procedure of Section 241A of the Code of Criminal Procedure before making application for quashing of C.R. Case under Section 561A of the Code. It appears that the High Court Division has not considered the aforesaid facts as well as the legal aspects of the case while passing the judgment and order quashing the proceedings of C.R. Case No. 1966 of 2005 thereof. Rather, it appears that the judgment and order passed by the High Court Division was not justified and misconceived. The judgment and order passed by the High Court Division in Criminal Miscellaneous Case No. 2033 of 2008 on 27.03.2008 is absolutely erroneous. The quashment of C.R. Case thereof cannot also be said to be lawful. Thus, the Appellate Division is constrained to interfere. The appeal is thus allowed and the judgment and order of the High Court Division dated 27.03.2 27.03.2008, passed in Criminal Miscellaneous Case No. 2033 of 2008 is set aside and the proceedings of C.R. Case No. 1966 of 2005 be restored to its original number. Mohammad Amir Ali Mostafa Vs. Shah Md. Nurul Alam and others (Criminal) 23 ALR (AD) 87
Sections 241A and 561A -The High Court Division should have exercised its jurisdiction under section 561A of the Code for quashment of the proceedings of the case without waiting for framing of charge or invoking the provisions of section 241A of the Code for discharge.
The Appellate Division is of the view that in the instant case the High Court Di- vision should have exercised its jurisdiction under section 561A of the Code for qua- shment of the proceedings of the case without waiting for framing of charge or invoking the provisions of section 241A of the Code for discharge. The High Court Division erred in law discharging the rule without considering the facts of the case as disclosed in the FIR and the Charge Sheet. Since no offence has been disclosed from the facts narrated in the FIR and the charge sheet, the continuation of the proceeding would amount to an abuse of the process of the Court. Therefore, the Appellate Divi- sion is of the view that in order to prevent the abuse of the process of the court the High Court Division should have quashed the proceeding of the case pending in the court of Magistrate, First Class, Narayan- gonj (South). Md. Habib Jamal-Vs. The State (Criminal) 13 ALR (AD) 111-130
Section 245(1) and 171
Responsibility of police to produce witness-Under Section 171 Cr.P.C. it is responsibility of the police to produce witness before the court on the date of hearing of the case. When witness is not produced, the Magistrate has rightly acquitted the accused under section 245(1). Mobarak All and others Vs. Mobaswir Alt and. others— 1, MLR (1996) (AD) 406
Section 245(1)-The prosecution having not taken any steps the learned Magistrate rightly acquitted the respondents under section 245(1) of the Code of Criminal Procedure. Mobarak Ali vs Mobaswir Ali 49 DLR (AD) 36.
Section 247-Summons must be issued for securing the attendance of the accused on the day appointed for hearing of the case. Shajib vs Md Abdul Khaleque Akand 51 DLR (AD) 119.
Section 247 r/w section 403
Since the order passed under section 247 of the Code of Criminal Procedure is one of acquittal the second complaint on the same allegation is not maintainable. At whatever stage of the proceeding the acquittal order section 247 is ordered, such order will operate as a bar the fresh trial, in the same way as are acquittal after trial on merits. …Bo-Sun Park Vs State & another, (Criminal), 7 SCOB [2016] AD 50
Section 247
Acquittal on ground of non-appearance of complainant-Section 247, provides for issue of summons to the accused for appearance for hearing the case. Acquittal of the accused on ground of non-appearance of the complainant on such date is illegal. Shajib (Md) and others Vs. Md. Abdul Khaleque Akand and others— 4, MLR (1999) (AD) 145
Section 247
Acquittal-Section 403— Bar to second Complaint—
Section 561A— Quashment of proceedings— No criminal proceedings lie on contractual dispute of civil nature—
When the accused was acquitted under section 247 Cr. P.C. second complaint on the self same allegations is not entertainable in view of the bar under section 403 Cr.P.C. Moreover no criminal proceedings lie in respect of civil dispute arising out of business contractual obligations. Such proceedings are liable to be quashed under section 561A Cr.P.C. being abuse of the process of law. Dwan Obaidur Rahman VS. The State — 4, MLR (1999) (AD) 257.
Section 247 r/w section 403
Since the order passed under section 247 of the Code of Criminal Procedure is one of acquittal the second complaint on the same allegation is not maintainable. At whatever stage of the proceeding the acquittal order section 247 is ordered, such order will operate as a bar the fresh trial, in the same way as are acquittal after trial on merits. The judgment and order of the High Court Division is set aside. The proceeding of C.R. Case No.421 of 2006 is hereby quashed. .....Bo-Sun Park =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 544]
Section 249/339C, 265/241A and 403
Release on bail—265/241A—”acquitted” and convicted’—person once convicted or acquitted not to be tried for the same offence—double jeopardy—terminologies such as ‘release’. released on bail’ discharged’, ‘acquitted’ and ‘convicted’—whether bear separate meanings with separate consequences and denote different connotations?
Held : Reading the Code as a whole it appears that in relation to an accused- petitioner, several terminologies have been used in the Code denoting different connotations. Each of the words has separate meanings and each word is attended with different consequences. When a proceeding is stopped either under section 249 or 339C of the Code, without pronouncing any judgment either of acquittal or of conviction and the accused is released, it does not operate either as a discharge or as acquittal of the accused, so as to attract in the latter case the protection of section 403 of the Code barring trial for the same offence once conviced or acquitted. Stoppage of a proceeding and release of the accused stand short of a discharge. It is half-way to discharge, but not discharge proper. It is certainly not an acquittal. The proceeding is not brought to a close. It does not fade into a past and closed transaction. The use of the words “further proceedings in respect of the trial shall stand stopped and the accused person released” in fact mean that the proceeding in question has come to a stop and the same proceeding can only be revived if the legislature gives sanction to it, but the words quoted do not mean that fresh proceeding cannot be started on the same allegations. A ‘fresh proceeding’ and ‘further proceedings in respect of the trial’ do not mean the same thing. The legal effect of the above quoted words in section 339C and the provisions of section 249 remain and the same proceeding can be revived by a legislative mandate or in the alternative a fresh proceeding can be instituted on the same allegations.
There is no legal bar for instituting a fresh prosecution on the self-same facts after a proceeding is stopped and accused released under Section 339C(4). Niamat Ali Sheikh and ors Vs Begum Enayetur Noor & others 13 BLD (AD) 11
Sections 249, 339C(4) & 403-Fresh pro- ceeding on self-same facts against the same accused persons after a proceeding is stopped and the accused is released-When a proceeding is stopped without a judgment either of acquittal or of conviction and the accused is released, it does not operate either as acquittal or discharge-the same proceeding is not revivable unless there is legislative intent to that effect. Section 339C(4) was inserted providing for revival within 90 days those proceedings of which trial was stopped-In the present case, more than 90 days having elapsed before the Ordinance came into force and revival of the proceeding being out of question, there was no legal bar against fresh prosecution on same allegations. Taking cognizance for the second time must however depend on facts and related considerations of each case-Fresh cognizance should not be taken where there is default in taking revival proceeding without sufficient cause. Niamat Ali Sheikh vs Begum Enayetur Noor 42 DLR (AD) 250.
Sections 265 1(3) and 342-The Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. Monirul Islam Khan vs State, 70 DLR (AD) 104
Sections 265 1 (3) read with Criminal Law Amendment Act
[XL of 1958]
Section 6(3)-An accused person may call any number of witnesses in his defence and there is no limit in the law to the number of witnesses that may be called.
The Appellate Division held that the Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the facts and circumst- ances of the instant case the trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. In the facts and circumstances discussed above, Appellate Division does not find any illegality or infirmity in the impugned order of the High Court Division and accordingly, the criminal petition for leave to appeal is dismissed.
Monirul Islam Khan Vs. The State and another (Criminal) 12 ALR (AD) 70-72
Sections 265A tơ 265L
Whether the Court shall examine the authenticity of the cheque only or it shall examine and consider the bonafide of the claim of the complainant and the defence case appeared in mate- rials available on record.
Chapter XXIII of the Code of Criminal Procedure consisting of sections 265A to 265L deal with the procedure to be followed when the case is tried. Those provisions cast a duty upon the Sessions Judge to apply his judicial mind in considering the materials and evidence adduced by the prosecution in order to come to a decision whether charge framed against accused person is proved or not. If after recording evidence and on perusal of the same and hearing the parties the Sessions Court considers that the evidence adduced by the prosecution are not sufficient and reliable to convict the accused, the Court shall record order of acquittal under section 265H of the Criminal Procedure Code. Since the case under section 138 of the Act is Sessions triable case, the trial Judge shall follow the aforesaid provisions of the Code of Criminal Procedure for holding trial. Md. Abul Kaher Vs. Emran Rashid and another (Criminal) 19 ALR (AD) 56-64
Section 265 I (3)
Restricted the number of defence witnesses–
The Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the facts and circumstances of the instant case the trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. .....Monirul Islam Khan =VS= Anti Corruption Commission, (Criminal), 2018 (1) [4 LM (AD) 389]
Section 265B-From a scrutiny of this section it does not appear that the section requires the actual production of documents before the court. Securities and Exchange Commission vs Abu Tyeb 55 DLR (AD) 47.
Sections 265B, 265C, 265D & 265E- Sections 265B, 265C, 265D and 265E form a composite session and steps to be taken under these sections are to be taken in the same session. No question arises of fixing another date for taking steps under section 265C or of separate hearing under section 265C of the Code. Securities and Exchange Commission vs Abu Tyeb 55 DLR (AD) 47.
Section 265C-The admitted position is that the respondent was the Chairman of the Company and she was never involved in the business of stock brokerage-In the absence of any allegation in the complaint-petition, the High Court Division rightly discharged the respondent from the charge. Securities and Exchange Commission, represented by its Chairman vs Runa N Alam 57 DLR (AD) 161
Section 265C-The accused has no scope to have any shelter under Section 265C of the Code since a prime facie case has already been disclosed against him. Md Lokman @ Lokman vs State 63 DLR (AD) 156.
Section 265C read with
Nari-O-Shishu Nirjatan Daman Ain, 2000 (VIII of 2000)
Section 28- No requirement in law for recording the reasons for framing charge elaborately. There is no direction either in section 265C or in any other section of the Code of Criminal Procedure that the court/tribunal will have to record the reasons of framing charge also. If the Court/Tribunal, on examination of the records and also after hearing both the sides finds that there are sufficient materials for proceeding against the accused the Court/Tribunal shall frame charge against the accused persons, there is no requirement in law for recording the reasons for framing charge elaborately. Md. Muntasir Mamun Khan -Vs.- The State 5 ALR (AD)2015(1) 77
Section 265C- Discharge of an accused.
On an application by the accused respondent the Special Judge discharged the accused by order dated 15.03.2004 finding that there was no sufficient material on record to proceed with the trial of the case. On perusal of the F. I. R. charge sheet and the statements of the witnesses recorded under section 161 of the Code of Criminal Procedure the Appellate Division found that there was sufficient materials on record to proceed with case. Moreover, the offences involved in the case are non- compoundable offences and there was no application for permission of the Court to effect compounding the offences the and as such order of discharge of the accused- respondent is totally unwarranted and illegal. Sonali Bank Limited-Vs. Mr. Abu Md. saleh Bhuiyan and others. 4 ALR (AD) 2014 (2) 26
Section 265H
Criminal Trial No witness was examined on behalf of prosecution. In the context, the question of acquittal of the accused under section 265 H of the Code does not arise at all. Hasan Arif Ullah -Vs- Most. Nilufar Yesmin 3 ALR(2014)(1)(AD) 15
Section 339B
Trial in absentia— Drugs (Control) Ordinance, 1982— Section 16A, 16B and 20—
Limitation of appeal immaterial when court lacks in jurisdiction-Publication of proclamation in Gazette and in two daily Bengali Newspapers is a mandatory precondition of absentia trial as provided under section 339B of the Code of Criminal Procedure, 1898. When such publication is not made, the court can not try the accused in his absence. Limitation of appeal is not material when the court lacks in jurisdiction. Nazrul Islam Chowdhury Vs. The State—4, MLR (1999) (AD) 221.
Section 339B-Section 339B of the Code provides two procedures for trial of an accused person in absentia. Sub-section 2) provides that when an accused person has absconded after being enlarged on bail or concealing himself so that he cannot be arrested and produced for trial, the court after recording its opinion so to do, try such person in absentia. The court need not split up his case or to exhaust the procedures required for holding trial of an accused who has absconded from the beginning. An appeal being the continuation of the original proceeding, section 3398 is equally applicable to the appellate court. (PER SK SINHA, JAGREEING WITH MO ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6
Section 339B-The High Court Division did not give any finding on this point of circulation of the newspaper. Since it is a question of fact about the sufficiency or otherwise of circulation of the newspaper this cannot be raised at this stage. State vs Anowar Hossain Pinto alias Anowar Hossain 61 DLR (AD) 108.
Section 339C-"Working days" for disposal of criminal cases stopping proceedings for release of the accused "Working lays" of the Court "Working days" shall be understood to mean the "Working days" during which the learned judge will hold the charge of the trial Court-A Division Bench of the High Court Division rightly excluded the period of 53 days from the statutory period for the trial as the Additional District Judge held the charge of the District and Sessions Judge for 53 days which were not treated as "Working days" for the trial Court. The application for quashing the pro- ceedings rightly rejected. Abul Kashem vs State 40 DLR (AD) 97.
Section 339C read with Ordinance No. 37 of 1983 (coming into force on 8-8-1983 extending the time-limit upto 30-6-1985 in his case and later on finally upto 30-9-1985)
Charge-sheet was submitted on 16-6-83 before SDM who in due course forwarded the record to the Sessions Judge for trial. The case comes within the ambit of the lime limit of the Ordinance No. 37 of 1983 which was intended to save such trials. Construction put to the Ordinance by the HC Division is not correct to conclude that this case is "not pending" on the date of commencement of the Ordinance. State vs Madhu Mridha 40 DLR (AD) 99.
Section 339C-The whole purpose of unamended section 339C was to whip up the pro- secution and activise the trial Court so as not to delay the trial of a case unnecessarily. Abdul Wadud vs State 48 DLR (AD) 6.
Section 339C-The Sessions Judge made a mistake in holding that after receipt of records of the case for trial in December 1988 by his pre- decessor, a fresh period of 270 days will start for him to complete the trial since he had taken charge of the Sessions Division in January 1991. Section 339C referred to an office, not a person. Abdul Wadud vs State 48 DLR (AD) 6.
Sections 339C(4) & 497-Besides inordinate delay in prosecuting the trial of the case and the provision of section 339C(4) of the Code, the fact that the appellant has been suffering from enlarged prostate gland and problems in his urinary track attracts the proviso to section 497 CrPC for consideration to enlarge the accused on bail. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.
Sections 339C(4) and 498-Even in a non- bailable offence the accused is entitled to be enlarged on bail unless the Court decides other- wise assigning reasons which are relevant to the fact of the case. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.
Sections 339C(4) & 498- The prosecution could not give plausible reason for inordinate delay in proceeding with the case-This circum- stance can be considered as a ground for granting bail to an accused. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.
Section 339C
Application of Amending Act No XLII of 1992 to Pending Cases— Stoppage and revival of proceedings—
The purpose of section 339C(4) was not to give the accused a right not to be tried any more on the same charge or a clean bill of acquittal. Stoppage of trial did not mean an absolute vested right of release of the accused because such right was equally attended with the right of the prosecution to revive the proceedings. With the repeal of sub-section (4) of section 339 C both the rights of release and revival are gone. Section 6 of Act XLII of 1992 is only applicable to proceedings which were stopped before 1-11-1992. The newly amended procedural law will be applicable to pending cases although instituted when the old provision was in force. Abdul Wadud Vs. The State— 1, MLR (1996) (AD) 66.
Section 339D-A Public Prosecutor represents the State in a case "of which he has charge" which is under enquiry, trial or appeal. Any action taken by the Public Prosecutor in such a case particularly when a case has been stopped due to expiry of the time-limit (which law has since been repealed) will be deemed to be an action on behalf of the Government so long as the Government do not disown it. Alimuddin vs State 49 DLR (AD) 118.
Section 339D
Revival of proceedings— On application of Public Prosecutor—
Public Prosecutor is not the Government. He represents the State in a case of which he Is in charge during enquiry, trial or appeal. Application filed by Public Prosecutor for revival of the proceedings stopped due to expiry of the time-limit is the sufficient compliance of section 339D and such an action is an action deemed to be on behalf the Government so long not disowned. Alimuddin & others Vs. The State— 1. MLR (1996) (AD) 364.
Section 340(3)
Expunged Evidence–
It is provided in section 340(3) of the Code of Criminal Procedure that any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. A witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. .....Durnity Daman Commission=VS=Md Gias Uddin-al-Mamun & another, (Criminal), 2016-[1 LM (AD) 473]
Section 340(3)-Even if an witness is arrayed in the category of an accused, his evidence may be taken into consideration under section 340(3) of the Code in support of his defence, any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. Durnity Daman Commission vs Md Gias Uddin-al- Mamun, 68 DLR (AD) 217
Section 340(3)-After a witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. Durnity Daman Commission vs Md Gias Uddin-al-Mamun, 68 DLR (AD) 217
Section 342-Non bringing of the alleged "আপোষ নামা" to the notice of the accused during their examination under section 342 of Code has been fatal in the case and for this defect the impugned judgment and order cannot be sustained, But this is a procedural defect which occurred due to non-application of mind the Judge of the trial Court. For this defect made by the Judge of the tribunal the accused cannot claim acquittal. (PER NAZMUN ARA SULTANA, J) (DELIVERING THE MAJORITY JUDGMENT) Rabindra Nath Roy vs State, 64 DLR (AD) 50
Section 342-A statement of the accused under section 342 CrPC is meant for giving him an opportunity to explain the circumstances appearing against him in the evidence adduced by the prosecution-This is entirely for the benefit of the accused and the accused only-This statement cannot be used by the Court against him, nor is the prosecution permitted to use it to fill up any gap left in the prosecution evidence. Relied on (1923) ILR Lah 50. Shah Alam vs State 42 DLR (AD) 31.
Section 342-One of important items for linking up the accused with the crime, namely the sandal, was not at all put to the accused as a cir- cumstance appearing in the case against him while he was examined under section 342 CrPC, Mizazul Islam vs State 41 DLR (AD) 157.
Section 342-Omission to examine the accused under this section is not curable under section 537. After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction if such omission has prejudiced the accused in their defence. The conviction is set aside and it is directed that the accused be examined under section 342 CrPC by the trial Court and thereupon the case be disposed of according to law. A Gafur vs Jogesh Chandra Roy 43 DLR (AD) 62.
Section 342
The petitioner admitted his guilt during examination under Section 342 of the Code of Criminal Procedure which is corroborative statement to his extra judicial confession and the same cannot be disbelieved at all. Monirul Islam @ Manir-Vs.- The State. 4 ALR (AD) 2014 (2) 159
Section 342- Remanded for fresh trial
The Appellate Division are of the view that this is a fit case for remand to the trial Court. Since we have decided that the case is to be remanded to the trial Court for fresh trial which will entail re- writing the judgment, we shall not make any observation at this stage with regard to the second ground of appeal. Md. Askan Ali -Vs-The State. 4 ALR (AD) 2014 (2) 162
Section 342
The whole object of section 342 is that the attention of the accused should be drawn to the specific point in the evidence on which the prosecution relies, so that he may be able to give such explanation as he desires to give. To defeat the primary object of the section which is to assist the accused in explaining the circumstances which are relied on by the prosecution as establishing the case against him is not a mere irregularity. Certainly this error has caused prejudice to the appellants.(Per S.K.Sinha, J minority view). Sree Rabindra Nath Roy @ Rabindra and another-Vs.-The State 1 ALR (AD)189
Section 342
The Tribunal since put much reliance on this for "আপোষ নামা' finding the accused guilty of the charges, ought to have brought this alleged "আপোষ নামা" to the notice of the accused while examining them under section 342 of the Criminal Procedure Code. This was mandatory in the facts and circumstances of this case; but for this defect made by the judge of the Tribunal the accused cannot claim acquittal. In our opinion this defect should be removed and for this purpose the case requires to be sent back to the Tribunal for examination of the accused persons under section 342 of the Code of Criminal Procedure afresh and for writing out the judgment afresh. (Per Nazmun Ara Sultana, J majority view. Sree Rabindra Nath Roy @ Rabindra and another Vs The State 1 ALR (AD)189
Section 342-Incriminating evidence or cir- cumstances sought to be proved by the prose- cution must be put to the accused during examina- tion under section 342 CrPC otherwise it would cause mis-carriage of justice. State vs Monu Miah 54 DLR (AD) 60.
Section 342-Since the petitioner has admit- ted his guilt no examination under section 342 of the Code of Criminal Procedure is required while convicting and sentencing the accused on the basis of the same. Jashimuddin vs State 56 DLR (AD) 223.
Section 342-Sending back the case on remand for fresh trial from the stage of the exami- nation of the accused under section 342 of the Code for the purpose of bring the incriminating evidence including the confessional statement to the attention of the appellant cannot be taken as giving of undue privilege to the prosecution to fill up any lacuna. Rather, remand of the case to the trial Court is for removing a procedural defect only which was caused for non-application of the mind of the trial judge. If such type of procedural defect is not allowed to be cured and the accused is acquitted for such procedural defect that will cause great injustice to the informant side who brought the matter before the Court of law for justice. Sohel @ Sanaullah @ Sohel Sanaullah vs State 63 DLR (AD) 105.
Section 342-No fruitful purpose will be served if the prosecution is aforesaid an opportunity to examine the appellants since the circumstantial evidence relied by the prosecution are so meager, there is no possibility to record an order of conviction basing upon the evidence on record. The facts proved by the prosecution lead no inference of guilt of the appellants. The inference of guilt can only be drawn if the proved facts are consistent with the guilt of the appellants and inconsistent wholly with their innocence. The prosecution has totally failed to lead evidence to draw such inference against them. (PER SK SINHA J) (DELIVERING THE MINORITY JUDGMENT) Rabindra Nath Roy vs State, 64 DLR (AD) 50
Section 342-Ends of justice will be met if the case is remanded to the trial Court for giving an opportunity to the respondent to cross-examine the prosecu- tion witnesses, if he so desires and also in order that the Court may examine the accused under section 342 of the Code. We find from the record that the victim, as informant, lodged the First Information Report naming the accused respondent as one of the perpetrators involved in abducting and raping her. She maintained her story of abduction and rape in her deposition before the Court. The trial Court upon assessment of the evidence convicted and sentenced the respondent along with others, although the trial took place in the absence of all the accused persons. State vs Robin, 66 DLR (AD) 272
Section 342
Since there is no eyewitness to incident, confessional statements of the appellants can be the sole basis of convicting the accused if it is found true and voluntary.
The Appellate Division observed that in this case the appellants retracted their confessional statement during examination under Section 342 of the Code of Criminal Procedure, but in view of the decision reported in PLD 1964 (SC) 813 this kind of delayed retraction has no value in the eye of law, if the confessional statement is found true and voluntary. In view of the facts and evidence discussed above, the Appellate Division's considered opinion is that the prosecution has been able to prove the case beyond reasonable doubt that both the appellants murdered the deceased. victims Sakina and Sohel and, therefore, the Appellate Division finds no wrong or illegality at the finding of the High Court Division to convict the appellants for murdering Sakina and Sohel and sentencing them to death based on judicial confession. As such, the conviction and sentence passed by the High Court Division in respect of the appellants does not suffer from any kind of legal infirmities, thus it does not call for interference by the Appellate Division. From the materials on record, it is found that the Tribunal passed the judgment and order of conviction and sentence of death of the appellants on 27.02.2006. Since then both the appellants Md. Afsar Ali Sheikh and Md. Abdul Mannan have been in condemned cell for more than 14 (fourteen) years suffering the pangs of death. In this circumstance, the Appellate Division is of the view that justice would be sufficiently met, if the sentence of death of the appellants be commuted to one of imprisonment for life. Accordingly, the appeals are dismissed. The sentence of death imposed upon the appellants Md. Afsar Ali Sheikh and Md. Abdul Mannan by the High Court Division is commuted to imprisonment for life, however, the fine imposed upon the appellants is maintained. Md. Abdul Mannan @ Mannan -Vs.- The State (Criminal) 22 ALR (AD) 43
Section 342 read with Cruelty to Women (Deterrent Punishment) Ordinance
Section 7-Whether provisions of section 342 of the Code of Criminal Procedure has been codified by the legislature to provide an opportunity to the concerned accused to make out his case about his innocence of the offence charged.
The Appellate Division observed that it is true that when the recording Magistrate deposes in Court to the effect that the accused voluntarily made a statement before him which was recorded by him, the accused becomes aware of the fact of his making such statement. However, the requirement of section 342 of the Code of Criminal Procedure is such that the law mandates that all the incriminating evidence against the accused be placed before him at that stage of the trial for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. This is the only opportunity he would have to counter any evidence against him by making a statement and / or by producing evidence in his defence. The Appellate Division is of the view that this is a fit case for remand to the trial Court. Md. Askan Al Vs. The State (Criminal) 8 ALR (AD) 205-207
Section 342
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(3)
The Code of Criminal Procedure, 1898
Section 342
The case is remanded to the trial Court for giving an opportunity to the respondent to cross-examine the prosecution witnesses– In view of the fact that the accused respondent did not appear in the trial, and was therefore unable to cross-examine the prosecution witnesses, Appellate Division is of the view that ends of justice will be met if the case is remanded to the trial Court for giving an opportunity to the respondent to cross-examine the prosecution witnesses, if he so desires and also in order that the Court may examine the accused under section 342 of the Code of Criminal Procedure. The criminal petition for leave to appeal is disposed of. The impugned judgement and order is set-aside. The case is remanded to the trial Court so far as it relates to accused respondent Robin with the direction to allow the accused to cross-examine the witnesses, if he so desires and to conclude the trial in accordance with law. The accused respondent Robin be enlarged on bail to the satisfaction of the trial Court till conclusion of the trial. .....The State =VS= Robin, (Criminal), 2022(1) [12 LM (AD) 677]
Section 342
Nari O Shishi Nirjatan Daman Ain, 2000
Section 11(Ka)
Code of Criminal Procedure, 1898
Section 342
Sentence is commuted to imprisonment for life– The procedural defect can be cured by sending the case back on remand before the Tribunal for examining the appellant afresh under section 342 of the Code, but from the materials on record of the case at hand, it appears that the appellant has been in condemned cell for more than 15 (fifteen) years suffering the pangs of death and at this stage if this case is sent back on remand, it would take many years to dispose of the case and the appellant has to undergo the sufferings. After considering all these aspects, Appellate Division is at this stage inclined to dispose of the appeal instead of sending the case back on remand to the trial Court.
The appellant has been convicted under section 11(Ka) of the Nari O Shishu Nirjatan Daman Ain, 2000 for murder of his wife and sentenced to death. In section 11(ka) of the Ain the only punishment for murder for demand of dowry is death. It is the discretion of the court to impose death penalty considering the gravity of the offence. To measure the gravity of the offence or appropriate circumstances to impose death penalty is the judicial function. The Court shall scrutinize the relevant facts and circumstances to impose punishment in respect of each case; this discretionary power of the Court can be curtailed by no means.
The Jail Appeal is dismissed with modification of sentence. The sentence of the appellant is commuted to imprisonment for life with a fine of Tk.5,000.00, in default to suffer simple imprisonment for 15(fifteen) days more. ...Mohasin Mollah(Md.) =VS= The State, (Criminal), 2021(2) [11 LM (AD) 222]
Section 342
Husband is duty bound to explain his wife’s death when his wife dies in his custody and he can explain it in his 342 statement:
From the testimonies of the PWs. 1, 8 and 9 it was proved beyond all reasonable doubt that the instant appellant left the PW.1’s house with his wife Nasima Begum Aka Bahana along with their two sons before the alleged killing of her. This event eventually proved that Nasima alias Bahana before her death was in undeniably in the custody of her husband, the instant appellant. On 01-05-2006, it was reported that she was missing. On 06-05-2006, her corpse was recovered from the septic tank of her husband. The appellant in his confessional statement admitted aforesaid recovery. He not only knows the recovery of corpse, rather, knows about the killing, even though, he falsely searched for Nasima with other inmates of the house only to show publicly that Nasima was really missing which was not fact. The appellant’s such a pretext undoubtedly proved that he was fully aware about the murder. …the instant appellant as the husband is solely responsible and duty bound to explain as to how and when his wife, Nasima Begum alias Bahana was died. He was miserable failed to explain, even if, he was examined under section 342 of the Code of Criminal Procedure to that effect. …Md. Anwar Sheikh Vs. The State, (Criminal), 16 SCOB [2022] AD 40
Section 342
When a literate accused person re-calling witnesses cross-examine them, he is not at all prejudiced by minor defects in recording his statement under section 342 of the Code of Criminal Procedure:
Having gone through statement recorded under section 342 of the Code of Criminal Procedure, I find that the statement was not recorded specifying the evidence adduced by individual witnesses but it cannot be said that the appellant was prejudiced in any way by such minor omission because he is a literate person and at his instance P.Ws.5, 6 and 7 were recalled. After recalling the aforesaid witnesses they were again crossexamined none other than by the appellant himself. Therefore, I am of the view that the condemned-appellant being a literate person and the witnesses having been examined in his presence, he was not at all prejudiced by such a minor defect in recording his statement under section 342 of the Code of Criminal Procedure. [Syed Mahmud Hossain, CJ (Minority view)] …Md. Abdul Awal Khan Vs. The State, (Criminal), 16 SCOB [2022] AD 22
Section 342
We also find some merit in the submission of the learned Advocate appearing on behalf of the appellant that the examination of the appellant done by the trial court under section 342 of the Code of Criminal Procedure was not conducted properly as the incriminating evidence in the depositions of the prosecution witnesses were not placed before the appellant in accordance with law. Hence, we are of the opinion that the examination of the appellant under section 342 of the Code was not lawfully done by the trial Court. So, the trial conducted by the court below is liable to be vitiated. [Muhammad Imman Ali, J (Majority view)] …Md. Abdul Awal Khan Vs. The State, (Criminal), 16 SCOB [2022] AD 22
Section 342
Appellate Division also finds some merit in the submission of the learned Advocate appearing on behalf of the appellant that the examination of the appellant done by the trial court under section 342 of the Code of Criminal Procedure was not conducted properly as the incriminating evidence in the depositions of the prosecution witnesses were not placed before the appellant in accordance with law. Hence, this Division is of the opinion that the examination of the appellant under section 342 of the Code was not lawfully done by the trial Court. So, the trial conducted by the court below is liable to be vitiated. (Majority view: Per Mr. Justice Muhammad Imman Ali). .....Abdul Awal Khan(Md.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 401]
Section 344-Stay of proceeding-In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding, where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102.
Section 344-In view of the provisions of section 344 of the Code, it appears necessary that the trial of the CR Case No. 2969 of 2004, now pending in the Court of Metropolitan Magistrate, be postponed for a limited period facilitating the disposal of the OC Suit No. 110 of 2002 for Specific Performance of Contract based on Bainapatra dated 10-4-2001 between the parties. Hanif vs State 60 DLR 634.
Section 344-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 344- Prayer for stay of judgment in criminal case on the ground of pendency of civil suit-Section 344 CrPC authorises the Court to adjourn a trial. That a judgment in a criminal court is pronounced "after the termination of the trial" is provided in section 366 CrPC. Therefore, the prayer for stay of delivery of judgment under section 344 was misconceived. HM Ershad vs State 44 DLR (AD) 145.
Sections 345(6), 417(1) & (2)
Remand the case to frame charge afresh in accordance with law– It appears from the judgment and order of the High Court Division that the Rule was made absolute purely on the ground that the opposite party Md Nurul Alain, being a third party, did not have locus standi to file Criminal Appeal No.419 of 2004 under section 417(1) of the Code of Criminal Procedure.
It is apparent that under section 417(1) and (2) only the government or the complainant may file appeal against an order of acquittal. Therefore, the informant could only file a revision against the aforesaid order of the Chief Metropolitan Magistrate, Dhaka, but in this case a person who was not the complainant has filed an appeal which is not contemplated under the law. Appellate Division is of the opinion that the order of acquittal under section 345(6) of the Code being illegal is set-aside and the compromise entered into by the informant is null and void. The matter is sent back to the Court of Chief Metropolitan Magistrate, Dhaka to be dealt with in accordance with law. .....Nurul Alam @Dr. Hazrat Shah Sufi Md Nurul Alam =VS= Saleha Khatoon, (Criminal), 2022(1) [12 LM (AD) 388]
Section 349A
Sessions judge court is not a successor court of Special Martial Law court —
Conviction may be passed on the evidence partly recorded by one Sessions Judge and partly by another Sessions Judge. A Sessions Judge is not a successor court of Special Martial Law Court and as such the Sessions Judge cannot pass conviction on the basis of evidence recorded by Special Martial Law Court. After getting back Hie case record from the Special Martial Law Court, the Sessions Judge ought to have resummoned the witnesses for examination after framing charge. The State Vs. Colam Mostaja and others— 1, MLR (1996) (AD) 320.
Section 367-There has not been any miscarriage of justice caused by non-compliance with the provisions of section 367 CrPC while acquitting the accused persons by the Magistrate though his judgment was not in proper form. Nurul Huda vs Bhashanu Sardar 40 DLR (AD) 256.
Section 367-Judgment Writing of a proper judgment If the trial Court's judgment is such that it cannot be termed as a judgment as per requirement of this section, hence an order of writing a proper judgment may be necessary- When the entire matter is open to the criminal Appellate Court which is required by law to assess the evidence independently and come to its finding, then merely because there has been some omission made by the Trial Court in not considering a piece or pieces of evidence, would hardly offer a valid ground for sending the case on remand for a proper judgment. Md Moslehuddin vs State 42 DLR (AD) 160.
Section 367-Remand-As a general rule an order for retrial would be proper if the trial in the lower Court was vitiated by illegality or irregu- larity or for other reason. Md Moslehuddin vs State 42 DLR (AD) 142.
Section 367 as amended by the Law Reforms Ordinance (XLIX of 1978), Section 2 and Schedule thereto read with the Penal Code (XLV of 1860), Section 302.
Substitution of sub-section (5) of section 367 CrPC by the Law Reforms Ordinance-Effect of change on sentencing-Previously death sentence was the normal sentence for murder and the court was required to give reasons if the lesser sentence of life imprisonment was given-After the sub- stitution now reasons have to be given in either case-A death sentence is to be justified in as much in the same way as in the case of lesser sentence of life term imprisonment. Abed Ali vs State 42 DLR (AD) 171.
Section 367
The appellate court may send a case for retrial; but if evidence already on record is sufficient to dispose of it no such retrial is called for–– Appellate Division is of the view that 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. ––The case is remanded to the High court Division for hearing afresh. A single Bench of the High Court Division constituted by Fatema Najib, J., is directed to dispose of the Criminal Revision within 06 (Six) months from the date of receipt of this judgment. The order of bail of the petitioner granted by the High Court Division shall continue till disposal of the Criminal Revision. .....Helal Uddin(Md.) =VS= The State, (Criminal), 2022(2) [13 LM (AD) 593]
Section 367 (5)
The Code of Criminal Procedure, 1898
Section 367 (5) r/w
The Penal Code, 1860
Section 302
Capital Sentence: Bangladesh Perspective–
Bangladesh, like its neighbours and majority of the commonwealth members, retain capital punishment, though it is limited to capital offences only. Bangladesh general law, as it stands today, is slightly at variance with that in India in that a sentencing Court in Bangladesh must assign reasons whether it awards death sentence or the alternative sentence of imprisonment for life, while in India, only death sentences must be justified by special reasons.
General substantive legislation i.e. the Penal Code fixes the penalty that can be awarded, while the general procedural legislation i.e the Code of Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be followed in sentencing a person convicted of an offence punishable under a penal provision of the Pena Code.
Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as amended) provides that where the Court condemns a convict with death sentence or in the alternative awards imprisonment for life or for a tem of years, the Court shall state reasons for the sentence awarded. No sentencing section in the Penal Code specify any particular sentence. They do, instead specify the maximum sentence, often with alternative, whether custodial or not, and thereby equip the Court with a great deal of discretion.
As death sentence in Bangladesh under the Penal Code is not mandatory and alternative sentence of life imprisonment can, at the discretion of the Court, as discussed above, under the heading “sentencing principles in Bangladesh”, be awarded, only in appropriate cases of murder, where aggravating factors outweigh mitigating factors, such as provocation etc. are absent death sentences are passed at the Courts’ discretion. Our Courts apply general deterrence, retribution, commensurability, proportionality rationales, motive, personal circumstances of the convict. Antecedent facts leading to the commission of the offence, play decisive role in the determination of sentence. Thus the Appellate Division in Nowsher Ali – V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar –V-State (40 DLR (AD) 139) commuted death sentence in wife killing cases because the couple’s union were not “blissful” and were rather “rancorous”.
Death sentences are however deemed appropriate when the convict act in cold blood without provocation, which are so heinous that arouse judicial indignation.
Apart from the cases of murder, which are punishable under section 302 of the Penal Code, capital punishment can be awarded for gang rape, trafficking of children, women, for seriously injuring a child or a women by acid throwing under a special legislation called Women and Children Cruelty Act, 2013. While exercising their discretion, take account of all those factors as they take in sentencing a murderer under the Penal Code provisions. (Paras:1082-1087); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76]
Section 367-Under the present provision, if the accused is convicted for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the court shall in its judgment state the reasons for the sentence awarded. The language of the provision clearly suggests that the sentence of death is the normal penalty and a lesser sentence can be passed when there is any extenuating circumstance. Section 302 of the Penal Code provide two sentences, 'death' or 'imprisonment for life. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214
Section 368-Section 368 of the Code provides the mode of sentence of death and imprisonment for life has to be imple- mented. In respect of death sentence, the court shall direct that the convict 'be hanged by the neck till he is dead. A life sentence prisoner may be sent to any jail according to the convenience of the jail authority. Ataur Mridha Ataur va State, 69 DLR (AD) 214
Section 368-Both the Government and the Inspector General have power to remove a prisoner from one prison to another. It is not necessary that a person sentenced to imprisonment for life must always be sent to Andamans. He may be kept to local jails under section 368 read with the Jail Code. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214
Section 374-As there is no conclusive evidence as regards the principal assailant, ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life. Tapan vs State, 66 DLR (AD) 174
Section 374-Delay in the disposal of the case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was pre- meditated senseless, dastardly and beyond all human reasonings. Shahidul Islam @ Shahid vs State, 70 DLR (AD) 68
Sections 374 and 376-Condemned- prisoner spent about 4 years in the condemned cell, and 13 years have elapsed since the judgment of the High Court Division, which commuted her sentence of death to imprisonment for life. State vs Romana Begum alias Noma, 66 DLR (AD) 183
Sections 374 and 410-True, no appeal was preferred against the order of acquittal of the accused persons on the charge of criminal conspiracy but, this itself is not a legal ground to shirk its responsibility even if there are sufficient evidence in support of the charge. (SK SINHA, J. AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13
Section 374-The appellant has been in death cell since 12.08.2002 and by the judgment he suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the facts of the case, justice would be best served if the sen- tence of death awarded to the appellant is altered into one for imprisonment for life with fine, of taka 10,000.00 only, in default, to suffer rigorous imprisonment for 6(six) months.
এই ঘটনার প্রেক্ষিতে দেখা যায় যে, আপীলকারীর মৃত্যু দন্ড বহাল রেখে হাইকোর্ট বিভাগ যে রায় দিয়েছেন সেটি সঠিক হয়েছে। তবে, আপীল বিভাগ মনে করেন যে, আপীলকারীর মৃত্যুদন্ডের পরিবর্তে যাবজ্জীবন কারাদন্ড দিলে এবং ১০,০০০.০০ টাকা তৎসহ জরিমানা অনাদায়ে ৬ মাসের সশ্রম কারাদন্ড দিলে তদ্বারা ন্যায় বিচার হবে। Momtaj Ali @ Babul -Vs. The State (Criminal) 7 ALR (AD) 36
Section 374
The appellant has been in death cell since 12.08.2002 and by the judgment he suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the facts of the case, justice would be best served if the sentence of death awarded to the appellant is altered into one for imprisonment for life with fine, of taka 10,000.00 only, in default, to suffer rigorous imprisonment for 6(six) months. .....Momtaj Ali @ Babul =VS= The State, (Criminal), 2016-[1 LM (AD) 557]
Section 374- Commutation-Delay by itself is no extenuating circumstance for commuting the sentence. There must be other circumstances of a compelling nature which together with delay will merit commutation. Abdul Khair vs State 44 DLR (AD) 225.
Section 374-The murder was not commit- ted by a vicious macho male. Before causing death of his wife the appellant suffered for some time from a bitter sense of being wronged by his wayward wife. In this case ends of justice will sufficiently be met if the sentence of death is commuted to one of life imprisonment. Zahir- uddin vs State 47 DLR (AD) 92.
Section 374-Though leave was obtained on 12-7-93, yet the office of the Attorney-General did not take any step to get the appeal heard and it remained pending for more than eight years. Under the circumstances the quantum of punishment must be minus that eight years. State vs Abdul Barek 54 DLR (AD) 28.
Section 374- When everything has been proved beyond all reasonable doubt mere long delay in the disposal of the case cannot by itself be a ground to commute the sentence. Giasuddin vs State 54 DLR (AD) 146.
Section 374-Merely because certain years have passed in reaching finality to the judgment of the Court of Additional Sessions Judge the same cannot be the ground for commuting the sentence of death where death was caused for no reason. Abdul Bashir alias Bashu vs State 56 DLR (AD) 207.
Section 374-The two petitioners being members of the Police Establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and, as such, they were rightly served, sentencing them to death and so no leniency ought to have been shown to them. We are unable to see eye to eye to the order of modification of their sentence. ASI Md Ayub Ali Sardar vs State 58 DLR (AD) 13.
Section 374-The mere fact that the victim luckily survived for weeks on account of treatment in the hospital is no ground to award lesser sentence. Ershad Ali Sikder vs State 57 DLR (AD) 75.
Section 374-Delay in disposal-The appellants never made any endeavour to dispose of the appeals either in the High Court Division or in the Appellate Division. It was the State that frequently prayed for fixation of the death reference in the High Court Division and on its prayer a Bench was constituted for hearing the death reference. After the death reference was disposed of by the High Court Division, the appellants after filing leave petitions did not take any step for hearing of their petitions. It was only on the prayer of the State that the leave petitions were heard and the appeals were also heard. Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 374-The death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region, which was ante-mortem and homicidal in nature and it is ex-facie clear that the petitioner strangled the victim with the intention of causing her death and there is no circumstances that may impel the Court to take a lenient view in commuting the death sentence as there is no mitigating or extenuating circumstances on record for the purpose of commutation of the death sentence, rather all the circumstances are aggravating. Alam Uddin vs State 62 DLR (AD) 281.
Section 374, 376 & 537
Even if it is assumed that the Session Judge has not taken cognizance of the offence after the case was ‘sent’ by the Magistrate, the trial of the accused shall not be vitiated in view of section 537 of the Code which provides that ‘no finding, sentence, or order passed by the court of competent jurisdiction shall be reversed or altered under Chapter XXVII on appeal or revision of account ...’ Chapter XXVII contains sections 374-380. Section 374 provides the sentence of death to be submitted by a court of Sessions to the High Court Division for confirmation. Section 376 empowers the High Court Division to confirm a death sentence or annul a death sentence. So, whenever a death sentence is passed by a court of session, it is sent to the High Court Division for confirmation. The High Court Division has power to confirm the sentence or annul the sentence and by reason of any defect or error in the procedure, death sentence cannot be vitiated. So, the conviction of the accused cannot be set aside by reason of the alleged defect. .....Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]
Section 374 & 376
The nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. We do not find any Substance in the petition. Thus, the review petition is dismissed. .....Shahidul Islam @ Shahid =VS= State, (Criminal), 2018 (1) [4 LM (AD) 428]
Sections 374 and 376- From the nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitiga ting or extenuating circumstances on record for commutation of the sentence of death. Shahidul Islam @Shahid vs State, 70 DLR (AD) 68
Sections 374 and 376-Since heinous crime was committed in cruel and diabolical manner, death sentence is justified punishment. It is true death for death may be, to some extent, inhuman but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life. The nature of the crime reveals that the petitioner is a menace to the society and sentence of imprisonment would be altogether inadequate. Shahidul Islam @ Shahid vs State, 70 DLR (AD) 68
Sections 374-380-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.
The Appellate Division held that no finding, sentence, or order passed by the court of competent jurisdiction shall be reversed or altered under Chapter XXVII on appeal or revision of account...' Chapter XXVII contains sections 374-380. Section 374 provides the sentence of death to be submitted by a court of Sessions to the High Court Division for confirmation. Section 376 empowers the High Court Division to confirm a death sentence or annul a death sentence. So, whenever a death sentence is passed by a court of session, it is sent to the High Court Division for confirmation. The High Court Division has power to confirm the sentence or annul the sentence and by reason of any defect or error in the procedure, death sentence cannot be vitiated. So, the conviction of the accused cannot be set aside by reason of the alleged defect. Mufti Abdul Hannan Munshi alias Abul Kalam and another -Vs. The State (Criminal) 19 ALR (AD) 126-141
Section 374- Since the condemned- petitioner has been undergoing the agony of death in the condemned cell for more than 8(eight) years. Appellate Division commuted the sentence to imprisonment for life from the sentence of death. Somed Ali -Vs. The State 3 ALR(2014)(1)(AD) 78
Section 376- The convict has now been in the condemned cell for more than 9/2 years due to no fault of his own. The length of period by now can be taken as a circumstance, when there are other extenuating circumstances, to commute the sentence of death of imprisonment for life" Nazrul Islam (Md) va State, 66 DLR (AD) 199
Section 376-Delay-Mere delay is not a legal ground for commutation of the sentence. Rasedul Islam (Md) vs State, 68 DLR (AD) 114
Section 376-The petitioner has no significant history of prior criminal activity and that he was aged 14 years at the time of commission of the offence and 16 years at the time of framing of charge. The petitioner has been in the condemned cell for more than 14 years. Death sentence of the petitioner be commuted to imprison- ment for life. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh, Secretary, Ministry of Home Affairs, 68 DLR (AD) 1
Section 376-The condemned- prisoner has suffered in the condemned cell for over 10 years and 8 months and thus the length of period can be taken as one of the reasons to commute the sentence of death to one of imprisonment for life. Sikha Rakshit vs Paritosh Rakshit, 70 DLR (AD) 1
Section 376-Sentence-Commutation of death sentence-Delay of about two years or so in the disposal of the Death Reference Cases and the Jail Appeal in the High Court Division, cannot by itself be a ground for awarding lesser sentence. Abed Ali vs State 42 DLR (AD) 171.
Section 376-There is nothing or record to show that there was (any real) love between the appellant and deceased Dilara. The appellant being not a jilted lover, it is difficult to commute the sentence of death to one of imprisonment for life.
Further, soon before the occurrence there was no provocation from the prosecution side and there was no occasion for the appellant to show any emotional imbalance and disequilibrium. On the contrary, the evidence on record shows that the appellant with a premeditated and pre-planned manner entered into the hut of the deceased with a dagger and killed her. The trial Court as also the High Court Division found no mitigating circum- stances. Nor did we. Abdul Quddus vs State 43 DLR (AD) 234.
Section 376-Death sentence, commutation of Death sentence not executed after more than four years from the date of confirmation of the sentence. Appellant suffered a prolonged agony for laches of others. Death sentence commuted to one of life imprisonment. Wajear Rahman Moral vs State 43 DLR (AD) 25.
Section 376-Since this is not the rarest of the rare cases, ends of justice will be met if the sentence of death of accused Kashem is converted into one of imprisonment for life. State vs Anowar Hossain Pinto alias Anowar Hossain 61 DLR (AD) 108.
Section 376- Commutation of death sen- tence-Mere delay is not a legal ground for com- mutation of a sentence. (Per Md Tafazzul Islam J). Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 376-Commutation of death sentence-There is no merit in the contention that uncontrolled and unguided discretion of the Judges to impose capital punishment or imprison- ment for life is hit by Article 14 of the Constitu- tion. If the Law has given to the Judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime it will be impossible to say that there would be at all any discrimination since facts and circumstances of one case can hardly be the same as the facts and circumstances of another. Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 376-According to our provision the Court has been left with the discretion on the facts of the given case whether or not a sentence of death should be awarded, and in case of awarding a sentence of death the Court is required to assign reason. The Court is of course keeping in mind while awarding the extreme sentence whether there is mitigating circumstances to exercise such discretion. The mitigating circum- stances in the exercise of Courts discretion as analysed in Jogmohan's case (AIR 1971 SC 500) are undoubtedly relevant circumstance and might be given weight in the determination of sentence. (Per SK Sinha J). Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 376-Although there is no evidence against all the accused persons of directly participating in the carnage but it should be borne in mind that for the killing of the sitting President, all the accused persons with a view to attainment of the object played different roles. Without jointly operating in concert the criminal object could not have been executed. It was not possible to bring about the result of the criminal object without support of all. In view of the matter, all the conspirators who actually participated and acted the crime do not deserve any leniency in the matter of sentence. (Per SK Sinha J) Major Bazlul Huda vs State 62 DLR (AD) 1.
Sections 378 and 429
Sections 378 and 429 of the Code of Criminal Procedure contemplate that it is for the third learned Judge to decide on what points he shall hear arguments, if any, and, that postulates that he is completely free in resolving the difference as he thinks fit, and therefore, the third learned Judge was competent to decide the case of six convicts of whom the learned judges were equally divided in their opinion and thus the third learned Judge was in agreement with the decision of the learned Judges of the Division Bench in respect of 9(nine) convicts of whom there was no difference of opinion. ...Major Md. Bazlul Huda(Artillery)=VS=The State (Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386]
Sections 378 & 429-Hearing of the case by a Third Judge-The language used in sections 378 and 429 of the Code is almost identical. It is said that in hearing a reference or an appeal if the Judges are equally divided in opinion thereon, the case with their opinions shall be laid before a third Judge for hearing, and the third Judge after hearing 'as he thinks fit' would deliver his opinion, and the judgment and order would follow such opinion. The expressions "as he thinks fit" used in both the sections are signifi- cant. It is the third Judge to decide on what points or in respect of whom he shall hear arguments. This postulates that the third Judge is completely free in resolving the difference as he thinks fit. If he does not think to hear the arguments in respect of any accused of whom the Judges are not divided in their opinions, he may decline to do so. The use of the words "equally divided" in both the sections means the Judges differ in their opinions, in respect of complicity of an accused or on the charge framed against him or them or on any particular point it can be inferred that they are equally divided but in a case where the Judges concur each other in respect of a particular accused and in respect of the offence charged, it cannot be said that Judges are equally divided in respect of the accused charged with. Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 401
Prisons Act 1894,
Section 59 (f)
Chapter XXI of the Jail Code and
Section 401 of the Code of Criminal Procedure 1898:
In exercise of the power conferred by section 59, sub-section (5) of the Prisons Act,1894 (IX of 1894) Rules were made in chapter XXI of the Jail Code to regulate the shortening of sentences by grant of remission. Any remission calculated by jail authorities under the provisions of the Jail Code are to be referred to the Government for release under section 401 of the Code of Criminal Procedure. But such remission recommended by the Jail Authority cannot be turned down by the Government without assigning any valid reason in writing as the rules relating to remission under Chapter XXI of the Jail Code were made under the mandate of section 59(f) of the Prisons Act,1894. (Majority view) (Per Mr. Justice Syed Mahmud Hossain, CJ) …Ataur Mridha alias Ataur Vs. The State, (Criminal), 15 SCOB [2021] AD 1
Section 401
The Prisons Act, 1894
Section 59 (f)
Jail Code
Chapter XXI
The Code of Criminal Procedure, 1898
Section 401
In exercise of the power conferred by section 59, sub-section (5)of the Prisons Act,1894 (IX of 1894) Rules were made in chapter XXI of the Jail Code to regulate the shortening of sentences by grant of remission. Any remission calculated by jail authorities under the provisions of the Jail Code are to be referred to the Government for release under section 401 of the Code of Criminal Procedure. But such remission recommended by the Jail Authority cannot be turned down by the Government without assigning any valid reason in writing as the rules relating to remission under Chapter XXI of the Jail Code were made under the mandate of section 59(f) of the Prisons Act,1894. (Majority view: Per Syed Mahmud Hossain, CJ) ...Ataur Mridha =VS= The State, [10 LM (AD) 527]
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 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(1)
Provides that a person tried and convicted by a court of competent jurisdiction shall not be tried and punished again for the same offence— Constitution of Bangladesh— Article 35(2)— Prohibits trial and conviction of a person twice for the same offence— General Clauses Act, 1897— Section 26— Contains similar provision against trial and conviction of a person more than once for the same offence—
From the above provisions it is abundantly clear that a person once tried and convicted by a court of competent jurisdiction for a particular offence shall not be tried and punished for the second time for the same offence. The appellant upon conviction by a Special Martial Law court though having no jurisdiction, had already served out the most part of the sentence and was then released on amnesty. The apex court held it inappropriate and against the interest of justice to reopen and restart the case afresh after lapse of long period and in that view set aside the order of the Sessions Judge. Mohammad Ullah Vs. Sessions ]udge, Noakhali and others 12 MLR (2007) (AD) 351.
Section 403
Fresh complaint, over the self same occurrence- when a proceeding is stopped under section 339C of the Code of Criminal Procedure and the accused stands released thereunder, such release is neither an acquittal nor a discharge as has been contemplated under the Code and as such the accused cannot claim the protection of section 403 of the Code from facing trial for the same offence. Jotish Das Vs. Chandan Kumar Das 4 BLT (AD)-258
Section 409-An Assistant Sessions Judge deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, 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 Addi- tional 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.
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-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.
Section 410
Appeal against conviction and sentence passed by Sessons Judge—Scope of interference —
The appellate Court has to discuss the evidence on record while deciding an appeal. When the appellate court without discussing the evidence in details affirmed the findings of the trial court, the Appellate Division upon scrutiny of evidence on record found nothing wrong in the judgment of the appellate court and as such the same is not interfered with. Altaf Hossain Vs. The State— 5, MLR (2000)(AD) 205.
Section 410
Appeal from sentence of Court of Sessions— and grant of bail-Bail in appeal against short sentence like two years may usually be granted and realisation of fine stayed where such appeal can not be decided expeditiously; otherwise the purpose of appeal will be frustrated. Alauddin Vs. The Stater— 4, MLR (1999) (AD) 256.
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
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-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.
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.
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.
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 Bangla- desh 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 - 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. The similar principle will be applicable in cases of inadequacy or reduction of sentence passed by the appellate Court in view of section 439(1) of the Code of Criminal Procedure (the Code) under which provision, the revisional court has been given all the powers conferred on a court of appeal by sections 423, 426, 427 and 428 of the Code. Shahidur Rahman Khadem -Vs.- The State 5 ALR (AD)2015(1) 144
Section 417A(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 passed 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
Sections 417A(3),423 and 439
Section 417A of the Code empowers the complainant to prefer an appeal to the Appellate Court against inadequacy of sentence The Appellate Court can enhance the sentence only after giving a reasonable opportunity to the accused of being heard. Bars Under section 423 of the Code the Appellate Court has the power to enhance the sentence passed against the accused after hearing him. This Power the to enhance the sentence is also available to Court of revision after giving notice to the accused to have his say in the matter. The High Court Division acted in excess of its power in enhancing the sentence of fine. Shahidur Rahman Khadem-Vs.- The State and others 1 ALR (AD)210
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, (Criminal), 2017 (2)– [3 LM (AD) 600]
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.
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 Deputy Com- missioner 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.
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)(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- 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 5 ALR (AD)2015(1) 144
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, (Criminal), 2017 (2)– [3 LM (AD) 600]
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 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
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, (Criminal), 2018 (2) [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, (Criminal), 2018 (2) [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, (Criminal), 2018 (2) [5 LM (AD) 207]
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-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 pay- ment 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 impri- sonment, 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(2A)
Ends of justice requires that when a person is convicted and sentenced to imprisonment for less than one year and he applies for bail before the Court convicting him stating that he intends to prefer appeal, or an appeal is admitted challenging the extent or legality of the sentence, bail ought to be granted.
The Appellate Division observed that although the Mobile Court Ain, 2009 does not provide the appellate Court with any power to grant bail, it should not overlook the provision of granting bail which is especially provided for in the case of short sentences. An analogy may be drawn to the general law as provided by section 426(2A) of the Code of Criminal Procedure, which provides as follows: "When any person is sentenced to imprisonment for a term not exceeding one year by a Court, and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended." In the instant case the petitioner was sentenced to imprisonment for 6 months. Hence, the general law provides that the Court passing the sentence may grant bail if the convict expresses his intention to present an appeal. In this case the petitioner in fact filed the appeal and could have been granted-bail. Moreover, it must be borne in mind that where the sentence is only for a short period, in this case six months' simple imprisonment, not granting bail would frustrate the appeal and ultimate success, if any, would be meaningless. Hence, it is the Appellate Division view that ends of justice requires that when a person is convicted and sentenced to imprisonment for less than one year and he applies for bail before the Court convicting him stating that he intends to prefer appeal, or an appeal is admitted challenging the extent or legality of the sentence, bail ought to be granted. In the facts and circumstances discussed above, it is ordered that the bail granted to the petitioner by the learned Judge-in-Chamber shall continue till disposal of the appeal. Ashraful Islam Imran -Vs. The State (Criminal) 20 ALR (AD) 79-81
Section 435
In view of the above specific provision as contemplated in the Code of Criminal Procedure, if anyone is aggrieved by an order including granting bail to an accused passed by a Magistrate, he ought to have preferred a revisional application before the Court of Sessions, if so advised or desired, as the order is revisable one. We have no hesitation to hold that a specific statutory provision cannot be overridden by so-called usual practice. When there is specific Provision of Law to ventilate a grievance particular in that event an authorized practice cannot be appreciated and endorsed. …Minaz Ahmed and another Vs. Arif Motahar and others, (Criminal), 16 SCOB [2022] AD 89
Sections 435, 426(2A) and 561A
The Negotiable Instruments Act, 1881
Sections 138 and 140
The Code of Criminal Procedure
Sections 435, 426(2A) and 561A
There is a specific provision in the Code of Criminal Procedure for preferring revisional application against the order of rejection of the bail petition filed under Section 426(2A) of the Code of Criminal Procedure–– Appellate Division’s view is that there are specific provision in Sections 426 and 435 of the Code of Criminal Procedure for bail of a convicted person and if bail petition filed by a convicted person under Section 426(2A) of the Code of Criminal Procedure is rejected, then the remedy lies under Section 435 of the Code of Criminal Procedure in “Revisional Jurisdiction”.
It appears that the High Court Division without appreciating the scope of Section 561A of the Code of Criminal Procedure and without applying its judicial mind exceeded its jurisdiction in passing the order in exercise of inherent power vide impugned judgment and orders dated 25.10.2022 which calls interference by this Division.
The convict Md. Lutful Hasan is in jail custody, it is felt that justice would be best served if he is given an opportunity to file a revisional application in the competent court of jurisdiction under Section 435 of the Code of Criminal Procedure against the impugned orders dated 26.09.2022 passed by the learned Joint Metropolitan Sessions Judge, 5th Court, Chattogram. Accordingly, the convict person i.e. Md. Lutful Hasan may file a revisional application under Section 435 of the Code of Criminal Procedure, if so advised, against the impugned orders dated 26.09.2022 within 30 (thirty) days from the date of receipt a copy of this judgment and order. .....Sajjad Hossain = Md. Lutful Hasan, (Criminal), 2023(1) [14 LM (AD) 599]
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.
Section 435,439 and 498
Cancellation of bail- Going through the police forwarding and remand report indicating clearly that the accused petitioner along with his accomplices by hiring the killers killed the husband, a freedom fighter, of the informant. An enquiry was held by the police on the G.D. filed by the informant and in the enquiry report it has been clearly stated that she was threatened by the accused petitioner and thus she apprehended that fair investigation could not be held if the accused petitioner remains on bail and the witnesses will be influenced by the accused as a result of which fair trial will be hampared. In that view of the matter the Courts below have rightly cancelled the bail. Md. Rayhan Khokon -Vs- The State. 1 ALR (AD) 75
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 other- wise it will be an example of nipping the prosecution in the bud. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.
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.
Section 438
Executive Director of the Securities and Exchange Commission filed reports under section 25 of the Securities and Exchange Ordinance, 1988 before the Chief Metropolitan Magistrate, alleging offences under section 17 read with section 24 of the said ordinance where upon the CMM took cognizance of offence and directed issuance warrant of arrest against the accused petitioners, on the day following, the accused petitioners obtained anticipatory bail from the High Court Division, then they filed criminal revision cases before the Sessions Judge, under sections 435 and 43 9A of the Code of Criminal Procedure for setting aside the order of the CMM- Held: The reference made by the Sessions Judge was misconceived because he himself could set aside the order of the CMM which was actually prayed for. Shinepukur Holding LTD. & Ors. Securities Exchange Commission & Anr 6 BLT (AD)-265
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 of the matter, the appellants will remain on bail already granted, till disposal of the revision case. Baneanzuddin Ahmed vs State 43 DLR (AD) 120.
Section 439-The High Court Division may also suo motu call for the record of the courts sub- ordinate 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.
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 con- current 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 Kamal- uddin 43 DLR (AD) 175.
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) & 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 439(6)-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 can not exercise the power except in cases provided under section 439(6) of the Code.
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 can not exercise the power except in cases provided under section 439(6) of the Code. [আপীল আদালতে, আপীল বা রিভিশন ব্যতিত দন্ডাদেশের মেয়াদ বাড়ানো বা কমানোর হাইকোর্টের এখতিয়ার নেই।] Shahidur Rahman Khadem-Vs-The State and others 6 ALR (AD) 2015 (2)218
Sections 439 and 439A
An order passed by the Sessions Judge or Additional Sessions Judge, as the case may be, under section 439A of the Code of Criminal Procedure is not amenable to the revisional jurisdiction of the High Court Division under section 439 of the Code of Criminal Procedure. Md. Joaharul Islam-Vs.-The State and another. 4 ALR (AD) 2014 (2) 205
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 power for the limited purposes as set out in that, section namely, 'to give effect to any order under the 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.
Section 439A
Without exhausting section 439A of the Code of Criminal Procedure, directly moved the High Court Division under section 561A of the Code of Criminal Procedure is not proper. Any order was passed by the learned Magistrate, the said order was revisable under section 439A of the Code of Criminal Procedure by the learned Metropolitan Sessions Judge. The accused-respondent without exhausting the said forum directly moved the High Court Division a petition under section 561A of the Code of Criminal Procedure. The High Court Division is not invested with any appellate or alternative power under section 561A of the Code of Criminal Procedure. The State: -Vs.-Md. Ariful Islam @ Arif 2 ALR (2013)(AD) 252
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 ambit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.
It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time-honoured and constitutionally fixed duty is to invite judicial anarchy and judicial indiscip- line. This will create confusion in the administra- tion 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 res- traint and will desist in future from the temptation of treading on a beaten path.
Per Latifur Rahman J (agreeing): The pro- nouncement in respect of the power and juris- diction 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 Constitu- tional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh? Sher Ali vs State 46 DLR (AD) 67.
Sections 439A & 561A-Inherent 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-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 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, (Criminal), 2017 (2)– [3 LM (AD) 554]
Section 439A
Practice and procedure — An order allowing maintenance allowance to the wife was allowed exparte but the order was set aside by an Additional Sessions Judge in revision and the case was remanded to the Magistrate to allow the husband opportunity to adduce evidence — The Appellate Division modified the said order of remand with a direction that if the husband failed to avail of the opportunity of adducing further evidence within six weeks the original order for maintenance would stand — The husband having failed to adduce further evidence within six weeks, the Magistrate affirmed his earlier order of maintenance — On revision an Assistant Sessions Judge deemed to be an Additional Sessions Judge set aside the Magistrates order and remanded the case to the Magistrate for rehearing — The High Court Division set aside the order holding that the Additional Sessions Judge has no jurisdiction to re-open the matter settled by the Appellate Division and that a second revision under Section 439A was not maintainable in the same Court — A Magistrate has got power under Subsection (6) of Section 488 Cr.P C to hear and determine a case for maintenance exparte if the opposite party willfully neglects to attend the Court. Abdul Moneyem Chowdhury Vs. Md Shamsul Hussain Chomlhury 6 BLD (AD) 128.
Section 439 and 561 A
Maintainability—After disposal of application u/s 439— application u/s 561A not permissible— Section 145— Proceedings thereunder—
Finding of possession in the disputed property within the statutory period by the Magistrate on proper appreciation of evidence can not be interfered with. Application under section 561A does not lie in the self same matter after disposal of revisional application. Ajman Alt Mia Vs. Md. Alauddin Chowdhury— 1. MLR (1996) (AD) 410.
Section 439
— Section 561A-Quashment of judgment— Not permissible— When ao legal infirmity—
The order of the Sessions Judge setting aside the order of discharge under section 241A Cr.Pc. passed in exercise of his power under section 439 of the Code upon consideration of the materials on record, is not liable to be interfered with because such order suffers neither from any illegality nor from any legal infirmity. Morshed Ali and others Vs. The Stale— 2, MLR (1997) (AD) 87.
Section 439
Revisional application does not lie at a belated stage—
When the trial has already began and some of the witnesses are already examined, the matter as to whether the charges are established or not the determination of which rests with the trial court. The propriety of framing charge is now the matter of the past. At this belated stage the Revisional application does not lie. Nazrul Islam and others Vs. The State— 5, MLR(200) (AD) 168.
Sections 469, 470 and 471
Judgment of acquittal on ground of Lunacy.- Whenever any person is acquitted upon the ground that, at the time at which he is alleged to have committed an offence he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not. 471. Person acquitted on such ground to be detained in safe custody.-(1) Whenever the finding states that the accused person committed the act alleged the Magistrate or the Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence, or such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action taken to the Government;
The Appellate Division opined that on a plain reading of the aforesaid provisions of law and on scrutinizing the materials on record, specifically the Medical reports (Exhibits-A, B, C and D), submitted by the DWs the Appellate Division has already found that the defence has been able to prove that the accusedrespondent was of unsound mind from 22.6.1999 i.e. 8 (eight) months after the date of occurrence (13.10.1998) but failed to prove the same, prior to that date. Since the defence failed to prove its plea of unsoundness of mind of the accused-respondent, at the time of commission of the offence on 13.10.1998, as required under section 84 of the Penal Code and section 105 of the Evidence Act by providing sufficient evidence, he cannot get any benefit under section 84 of the Penal Code nor under Chapter XXXIV of the Criminal Procedure Code. Plea of insanity or of unsoundness of mind of the accused-respondent being not prima facie found, the Court is not obligated to take recourse to the provisions as laid down in Chapter XXXIV of the Criminal Procedure Code. Accordingly, the Appellate Division hold that the submissions of the learned advocate for the appellant have substance. Thus, this criminal appeal is allowed. State -Vs. Abu Hanifa @ Hanif Uddin son of Md. Musa Ali, Village- Barak, PS- Haluaghat, District Mymensing. (Criminal) 18 ALR (AD) 47-54
Section 471
Lunacy Act 1912 (IV of 1912)
Sections 3(4) and 24
Code of Criminal Procedure, 1898
Section 471
Penal Code, 1860
Section 302
Unsoundness of mind at the time of the occurrence– Nikhil Chandra Halder Vs The State where in it has been held that:- “Lunacy Act 1912 (IV of 1912) Sections 3(4) and 24-Although the accused was acquitted, he came within the definition of ‘criminal lunatic’ and was liable to be detained in an asylum for treatment.” There is no cogent reason to interfere with the same and hence, the criminal appeal is dismissed. Let respondent, Najrul be acquitted of the charge and sent to safe custody under section 471 of the Code of Criminal Procedure for taking necessary and adequate measure. ...The State =VS= Nazrul Islam, (Criminal), 2021(2) [11 LM (AD) 479]
Section 473
There has not been an elaborate discussion of the evidence on record- In view of the fact that the High Court Division did not write out a proper judgment we took pains of going through both the judgments and we do not find that any miscarriage of justice has been caused. After a careful consideration we feel that no useful purpose will be served in sending the case back to the High Court Division for writing out a proper judgment as the same suffers from no error of law and fact. Abdul Khaleque Master & Ors Vs. The State 7 BLT (AD)-179
Section 473
Remand to the trial court for a fresh decision and allowed both the complainant and the accused to examine further witnesses on the point whether the alleged executant, Renu Bala died on 5.7.82 as alleged by the complainant or on 5.8.82 as alleged by the accused persons- Held: The learned Judges of the High Court Division in consideration of the evidence of PW2 and his report Ext. 2 found an indication of commission of forgery on the deed in question, and held rightly that the trial Magistrate had conveniently failed to consider the opinion of both the hand writing expert and the fingerprint expert to facilitate a judgment of acquittal. Bhulu Rani Saha Vs. Sri Pran Ballov Podder & Anr. 7 BLT (AD)-215.
Section 476 and 195
Complaint by Court—when permissible- Private complaint when can be lodged—The court can make a complaint only when a fraudulent document is produced before it in a proceedings. When not produced before the Court in any proceeding private complaint is not barred in law. Shamsuddin Ahmed Chowdhury Vs. The State &. another- 2, MLR(1997) (AD) 119.
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 made 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 476B
Whether in appeal the appellate court has jurisdiction to order remand of the cast under section 476 to the trial Court.
In case of making complaint the appellate court is to follow the provision of section 476. The authority of the Appellate Court is thus clearly pronounced and it cannot go beyond it. Sending a case on remand by the appellate court amounts to acting beyond jurisdiction. Khizir Hayat Khan Eusuf Zai Vs. Maja (Rtd.)Md. Muqtadir Ali & Ors 7 BLT(AD)-252
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 or 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.), (Civil), 2017 (2)– [3 LM (AD) 66]
Sections 482 and 561A -The Appellate Division also held that that in exercising the jurisdiction under section 561A of the Code, the High Court Division shall have the discretion to award costs against a party under a very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the specific provisions of the Code to meet the follow- ing situations: (i) to prevent abuse of the process of any Court or (ii) to give effect to any order passed under the Code or (iii) otherwise to secure the ends of justice. Costs may also be given to meet the litiga- tion expenses or can be exemplary to achieve the aforesaid purposes.
Khondker Latifur Rahman -Vs. The State, represented by the Deputy Com- missioner, Chittagong and another (Criminal) 12 ALR (AD) 6-11
Section 488
Maintenance allowance to wife — Whether an application for maintenance filed by the father of the wife is maintainable — An application for maintenance filed by the father or brother of the wife whom her husband neglected to maintain is maintainable. Abdul Moneyem Chowdhury Vs. Md Shamsul Hussain Chowdhury 6 BLD (AD) 128.
Section 491 read with Special Powers Act [XIV of 1974]
section 2(f) -Violation of the principle of natural justice and that no one should be condemned unheard. Imposition of fine against a government officer view, may expunge the order of censure passed against the appellant. and fine
The Appellate Division is inclined to take a lenient view. Hence the order of cen- sure and fine of Tk. 10/- passed against this ellant in the judgment dated 08.12.2003 passed by the High Court Division in Criminal Miscellaneous Case No. 12484 of 2003 be set aside. This criminal appeal is allowed accordingly. Prashanta Bhushan Barua -Vs.- The State (Criminal) 10 ALR (AD) 256-257
Section 491 - Fundamental rights are precious rights of a citizen and his right cannot be jeopardised by the detaining authority at its whims.
The order of detention as soon as may be communicate the person affected by the order of detention within 15 days.
The Appellate Division held that after the order of detention made by a District Magistrate or Additional District Magi- strate such officer is required to report the fact of such detention to the government together with the grounds on which the or- der has been made and such other particu- lar as in his opinion, have a bearing on the matter, the only precondition from making such an order of detention is that the au- thority making the order of detention as soon as may be communicate the person affected by the order of detention within 15 days from the date of detention the grounds on which the order has been made to enable him to make a representation in writing against the order of detention. The detenu may be detained for indefinite period sub- ject to the condition that if such detention is approved by the Advisory Board within 120 days from the date of detention and if the order of detention is made more than 6 months, the detenu should be placed before the Advisory Board in every 6 months from such order of detention. The State: Vs. Human Quader Chowdhury: A.S.F. Rahman: Md. Chand Mia Chand Mia: (Criminal) 10 ALR (AD) 305-310
Section 491
Application under above mentioned section is maintainable for custody of a minor to see that the minor is not held in custody illegally and/ or in on improper manner. Arun Karmakar Vs. The State 3 ALR(2014)(1)(AD) 222
Section 491 read with
Special Powers Act [XIV of 1974]
Section 3(1)-Whether the High Court Division was justified in holding that sub- section (3) of section 491 of the Code of Criminal Procedure is no bar in exercising its discretionary jurisdiction under clauses (a) and (b) of sub-section (1) of section 491 of the Code of Criminal Procedure. Ban- gladesh and others:
The State: Vs. Human Quader Chowdhury: A.S.F. Rahman: Md. Chand Mia Chand Mia: (Criminal) 10 ALR (AD) 305-310
Section 491(3) read with
Special Powers Act [XIV of 1974]
Section 2(f) -The orders of detention were made without lawful authority, ra- ther it can be said that the orders of de- tention were made by colourable exer- cise of power in an arbitrary manner.
The Appellate Division observed that the orders of detention clearly said the detain- ing authorities have reiterated the language used in section 2(f) of the Special Powers Act and they did not apply their judicial mind, and therefore, the orders of detention were made without lawful authority, rather it can be said that the orders of detention were made by colourable exercise of power in an arbitrary manner. Therefore, section 491(3) of the Code of Criminal Procedure will not stand in the way in examining the legality or otherwise the order of detention. The High Court Division thus committed no illegality in declaring the orders of detention illegal. Bangladesh and others: The State: -Vs.- Human Quader Chowdhury:
A.S.F. Rahman: Md. Chand Mia Chand Mia: (Criminal) 10 ALR (AD) 305-310
Section 491
Judicial custody of minor girl— Father is legally entitled to her custody—
The father as lawful guardian is legally entitled to the custody of his minor daughter. The opinion of immature mind of a minor girl is immaterial. On the basis of the unwillingness of the girl, she can not be kept in judicial custody for indefinite period. Mongol Chandra Nandi (Sree) Vs. Bangladesh represented by the Secretary, Ministry of Home Affairs and others—2, MLR(1997) (AD) 62
Section 491
Custody of a minor girl-Determinattion of age of the victim— Acceptability of father's statement when supported by school certificate and opinion of Radiologist—
In a case for bail of a minor girl in judicial custody the High Court Division is not precluded from deciding the case on merit by reason of the order of the Appellate Division directing retaking of the girl to judicial custody arising out of adinterim matters. In deciding the age of the victim girl pending determination by the trial court during trial, the statement of the father when supported by the school certificate and the opinion of the Radiologist can well be accepted even in the face of different opinion of the Medical Board. High Court Division is not required to proceed with the hearing of the bail petition in the absence of the peititioner or his lawyer, but it needs to decide the criminal appeal or criminal revision on merit even in the absence of the appellant or the petitioner as the case may be. Bashu Dev Chatterjee Vs. Umme Salma and another— 4.MLR (1999) (AD) 209.
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 Chatter- jee 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 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 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 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.
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- 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 Hanif 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-The consent mentioned in section 494 of the Code is not to be given mecha- nically. 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- 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
Withdrawal of a criminal case ----- Consent for withdrawal is not to be given mechanically — The Court is to exercise its jurisdiction judicially before giving consent This implies that the Court will have to examine the materials on which the Government decides the withdrawal of case — It ,is open to the Court to see whether the Government's order for withdrawal was malafide or made for collateral purposes. Syed Matiur Rahman alias Motiur Rahman Vs. The State 4 BLD (AD) 261.
Section 494
Withdrawal of criminal appeals — Giving consent to withdrawal is a judicial act and this will not be done as a matter of course — Before permission for withdrawal is accorded some material should be produced before the Court showing the reason for the withdrawal Anwara Bewa Vs. Razz.ak and others 5 BLD (AD) 327. Ref. 30 DLR (SC) 297; 35 DLR (AD) 329.
Section 494
Withdrawal of criminal, case— Accused can not seek— The accused has no locus stand! to file an application for withdrawal of a criminal case. The public Prosecutor only can file application for such withdrawal subject to the permission of the court. Abdul Khaleque and others Vs. Md. Hanif and others— 1, MLR (1996) (AD) 404.
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
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, (Criminal), 2016-[1 LM (AD) 490]
Sections 497 and 498
Sections 497 and 498 Discretions in granting bail should be properly exercised — It has been overlooked that other accused alleged to have committed the same offence were enlarged on bail and there was no specific allegations against the appellants — It was held that the High Court Division has not properly exercised its discretion in refusing bail to the appellants Feroj AH and another Vs. The State 7 BLD (AD) 91.
Section 497(5)
Cancellation of bail when not proper — The Special Judge did not exercise his jurisdiction properly in cancelling the bail of the appellant merely upon the apprehension expressed by the prosecution as to his possible abscondence ignoring the fact that he did not do so during the last six years he had been on bail — In the circumstances the High Court Division was wrong in rejecting the applicaton for bail. Sajalendu Das Vs. The State 7 BLD (AD) 154.
Section 497
Discretion in the matter of granting bail — Section 497 Cr PC. enjoins upon the Court a duty to exercise its 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 unrequited they may lead to the inference of guilt of the accused — The High Court Division committed an error of law in refusing bail to the appellant holding that "it is very difficulty at this stage to believe that there is no reasonable ground for believing that he has not committed an offence under Section 409 as alleged" — The approach of the High Court Division was wrong and the order of refusal of bail was illegal. A. K. M. Mosharaf Hossian Vs. The State 12 BLD (AD) 175.
Section 497 and 498
In the absence of any express or implied prohibition in any other special Law or Rule, the Magistrate concerned may entertain, deal with and dispose of any application for bail of an accused under section 497 of the Code of Criminal Procedure. In case of rejection of his application for bail he may move before the Court of Sessions by filing a Criminal Miscellaneous Case under section 498 and thereafter in case of failure before the Court of Sessions, he can move under section 498 of the aforesaid Code for bail before the High Court Division. …Minaz Ahmed and another Vs. Arif Motahar and others, (Criminal), 16 SCOB [2022] AD 89
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-"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.
Section 498- Order for conditional bail is illegal and not proper. AHM Siddique vs State 45 DLR (AD) 8.
Section 498 -Considering the statements under section 161 of the Code of Criminal Proce- dure 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-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 sen- tence 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 in criminal revision cancelled the appellant's bail 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-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 appellant 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.
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 the 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 efforts 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 reason- able 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-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.
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 51 DLR (AD) 137.
Section 498-In 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 Latifur 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 Latifur Rahman J (agreeing): Section 498 of the Code speaks of the High Court Divi- sion 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 Chowdhury 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-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-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 Appellate Division helds that under section 498 of the Code of Criminal Procedure the High Court Division cannot make any vague order directing the concerned authority not to arrest or initiate any criminal proceedings against any of accused in the paramedicians. Section 498 of the Code of Criminal Procedure empowers the High Court Division to admit an accused person on prearrest bail "in any case". In the absence of any case it cannot exercise the power. [হাইকোর্ট বিভাগ কোন ব্যক্তিকে গ্রেফতার না করার বা কোন কর্তৃপক্ষকে কোন ব্যক্তির বিরুদ্ধে মামলা করার নিমিত্তে নির্দেশনা প্রদান করিবে না।। Ministry of Health and Family Welfare Vs. Asit Baran Nath 6 ALR (AD) 2015 (2)114
Section 498
The Appellate Division observed that the High Court Division cannot direct the police not to apprehend an accused person who is said to have involved in a criminal proceedings if the case is under investigation. This would frustrate the administration of criminal justice. It should not be ignored that under the Code, the functions of judiciary and the police are overlapping, complementary, and combination not of individual liberty and that of safety of the people with a due observance of law and order is only to be obtained by leaving each agency to exercise its own function always subject to the right of the Court to intervene and give directions as to bail when necessary. [আপীল বিভাগের সিদ্ধান্ত হাইকোর্ট বিভাগ তদন্তাধীন বিষয়ে পুলিশকে নির্দেশনা দিবে না। Ministry of Health and Family Welfare -Vs. Asit Baran Nath 6 ALR (AD) 2015 (2)114
Section 498 -- Anticipatory bail
The Appellate Division set forth the following criteria the High Court Division shall follow while disposing of anticipatory bail applications;
(a) 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.
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 unravelling 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 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), supra.
Claim that the allegations are cooked up shall also not be adjudged at that point if the FIR or the complaint petition, as the case is, prima facie, discloses an offence. Whether the allegations are face 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 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 misuse 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. Durnity Daman Commission and another-Vs.-Dr. Khandaker Mosharraf Hossain and another3 ALR(2014)(1)(AD) 84
Section 498
The High Court Division shall follow while disposing of anticipatory bail applications in State V- Zakaria Pintu and others, 31 BLD (AD) 20 this Division kept no room for deviation from the following essentialities:
1) Assumption of jurisdiction to consider anticipatory bail is an extra- ordinary one.
II) Discretion of the High Court Division in granting bail, very wide though, must be encompassed by judicial circumspection based on established legal principles, without resorting to arbitrary consideration.
III)The Judges concerned must go through the F.I.R. meticulously and it must be reflected in their order that they have thoroughly scanned the facts and the allegations scripted in the F.I.R.
IV)Sometimes it is imperative on the part of the Court to refuse pre-arrest-bail when allegations against the petitioners are of serious nature, because the Court must always nurture in their introspection that justice must eventually be done by ensuring punishment for the offenders, as otherwise the fabrics of the civilised society will crumble.
V) The Judges must not be oblivious of the interest of the victims and the society as a whole, for justice connotes even handedness.
VI) Anticipatory bail application must be considered in the backdrop of the possibility that investigation process, in consequence of enlarging the accused on bail, may be impeded.
VII) Prevailing situation should not be ignored.
Durnity Daman Commission and another-Vs.-Dr. Khandaker Mosharraf Hossain and another 3ALR(2014)(1)(AD) 84
Section 498
Anti-Corruption Commission Act
[V of 2004]
Sections 26(2) and 33
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 circumtrances 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. We have given a cursory glance of the application for pre-arest bail. 'The grounds are also not relevant for the purpose of exercising discretion in the case. More so, the case having been filed by the Durnity Daman Commission in exercise of its power under Act of 2004, the Durnity Daman Commission is a necessary party but, the accused- respondent has not made it a party. Durnity Daman Commission. -Vs.- Jesmin Islam and another 5 ALR (AD)2015(1) 46
Section 498
The Appellate Division stayed the order of bail granted by the High Court Division. The respondent is in custody for about 4 years. Since the respondent in custody for about 4 years, the Appellate Division are not inclined to interfere with the petition. The State-Vs.-Milla Mizanur. 4 ALR (AD) 2014 (2) 153
Section 498
An anticipatory bail is an extraordinary relief and can be allowed only in an exceptional circumstances. While considering an application for anticipatory bail the status of the applicant or his affluence is not at all relevant. If there is apprehension that granting of bail may impede public interest such as security of the state or hamper investigation, the application for bail should be refused. In proper cases anticipatory bail may be granted for short period of 2 to 4 weeks without issuing a rule. The State, represented by the Deputy Commissioner, Bhola. Vs. Md. Monirul Islam alias Nirab and others. 1 ALR (AD) 7
Section 498
The Code of Criminal Procedure, 1898
Section 498 r/w
Penal Code (XLV of 1860)
Sections 161 and 165A
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, (Criminal), 2016-[1 LM (AD) 474]
Section 498
The Code of Criminal Procedure, 1898
Section 498 r/w
Prevention of Corruption Act (11 of 1947)
Section 5(1)(c)(d)
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, (Criminal), 2016-[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, (Criminal), 2016-[1 LM (AD) 476]
Section 498
The Code of Criminal Procedure, 1898
Section 498 r/w
Nari-O-Shishu Nirjatan Daman Ain, 2000
Sections 7/30
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, (Criminal), 2017 (2)– [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, (Criminal), 2018 (1) [4 LM (AD) 522]
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, (Criminal), 2020 [9 LM (AD) 533]
Section 498
Anticipatory bail — From the facts stated in the petition and the circumstances mentioned therein, it appears that the appellant may reasonably apprehend that the police might arrest him to prevent his participation in the election—His arrest may even destroy the chances of his winning the election — Political activities cannot be restrained even by the possibility of resorting to a criminal prosecution — Bail granted to the appellant till 1 (one) week after the postponed election Golam Sarwar Kamal Vs. The State 5 BLD (AD) 110
Section 498
The case of the appellant is that he is in possession of the disputed holding and he has already filed Title Suit No 117 of 1983 against the respondent who threatened him to dispossess from his peaceful possession __There is apparent disputes between the parties and as such there was no justification to refuse him bail Syed Mahbubur Rahman alias Mahhubur Rahman and another Vs. Abdul Matin and another 5 BLD (AD) 217.
Section 498
When it is reasonable to grant bail — There is apprehension that the trial may be further delayed and the appellants will suffer prolonged custody in the facts of the case it will be reasonable to allow the appellants to remain Section 498 — The appellant was tried in absentia and was convicted under Section 420 of the Penal Code and sentenced to R.I. for 7 years and to pay a fine of Tk 35,000.00 — He filed an appeal before the High Court Division and prayed for bail but his prayer for bail was rejected on the ground that prima facie there was no illegality in the trial — Since there is hardly any chance of abscondence the appellant was entitled to bail. .V. M. Shajhahan Ali Tara Vs. The State 9 BLD (AD) 2.
Section 498
The appellant is not named in the FIR. and the police could not gather any material against him although the investigation has been going on for over a year — In the circumstances of the case the High Court Division ought to have enlarged him on bail — The Appellate Division allowed his prayer for bail. Sree Kalyan Kumar Chowdhury Vs. The State 9 BLD (AD) 12.
Section 498
Rejection of bail petition — Whether appeal is the only remedy — The High Court Division was not right in taking the view that once a petition for bail is rejected no further application can be made before the same Court and the only remedy for the aggrieved lies in an appeal — It is not also 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 as the prayer for bail of the appellant was earlier rejected by a Division Bench. M. A. Wahab Advocate Vs. The State 10 BLD (AD) 50.
Section 498
Interim bail pending appeal — An interim bail can not be allowed to continue for an indefinite period—There is no reason for further extension of the interim bail simply because the appeal against his conviction is pending in the High Court Division — The ad interim bail was, however, extended for a period of six months from date on the expire of which the appellant was to surrender to his bail bond unless within this period his appeal was disposed of by the High Court Division Abdul Hakim Howlader Vs. The State 10 BLD (AD) 126.
Section 498
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 above or is obliged to hand him over to the police, to be dealt with in accordance with law– The accused-respondent nos.2 to 14, instead of surrendering before the police or before the Court of Judicial Magistrate, surrendered before the High Court Division and prayed for anticipatory bail.
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 above 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.
The learned Judges of the High Court Division, also directed the Sessions Judge, Pabna, to consider the prayer of the fugitives for bail. This kind of direction is very much improper and tantamounts to interfering with the discretion of the Sessions Judge, in considering the petition for bail on merit. The Sessions Judge, in considering a petition for bail, is at liberty either to grant or to refuse it, in his discretion, subject to merit of the case, without being influenced by any order of the High Court Division.
The petition filed on behalf of the accused respondents dated 20.04.2010, praying for vacating the order of stay, granted earlier by this Division, stands rejected. ...The State =VS= Zakaria Pintu, (Criminal), 2021(2) [11 LM (AD) 387] ....View Full Judgment
Section 498
The Code of Criminal Procedure, 1898
Section 498
Money laundering Protirodh Ain, 2012
Section 13
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 respondent, 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. The accused respondent was enlarged on bail within a very short period of time from the date of his arrest. Offence of this kind should not have been dealt with by the High Court Division in such a manner while granting bail to the accused respondent. Indeed, it was done hastily.
Besides, it has already been discussed under what circumstances confessional statements of co-accused becomes relevant and weighty. That being the position, Appellate Division is of the view that, the High Court Division has certainly misdirected itself enlarging the accused respondent on bail ignoring the settled principle of granting bail under section 498 of the Code of Criminal Procedure. The High Court Division wrongly made the Rule absolute and enlarged the accused respondent on bail. So, this Division is inclined to interfere with the same. .....DC, Dhaka =VS= AHM Fuad, (Criminal), 2023(2) [15 LM (AD) 191]
Section 498
Dealing with the granting anticipatory bail–– The High Court Division passed the impugned orders overstepping its limits. Appellate Division has given their anxious consideration to such unwarranted attitude of the High Court Division. 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. In such backdrop, this Division’s considered view is that the High Court Division and all other courts are bound to follow the law and propositions enunciated by this Division. This Division also directs the High Court Division to refrain from unscrupulous exercise of the power of granting anticipatory bail. ––Thus, finally taking note to the patent violation of settled decision of this Division regarding the anticipatory bail, Appellate Division disapproves the manner in which the High Court has adjudicated the anticipatory bail applications preferred by the respondents. In the light of the observations made above, this Division finds merit in the submissions of the learned Attorney General. Therefore, the impugned redress passed by the High Court Division is liable to be set aside. .....The State =VS= Md. Kabir Biswas, (Criminal), 2022(2) [13 LM (AD) 13]
Section 498
Bail when can be refused—
When the overt act on the part of the accused alleged in the F.I.R is corroborated by post mortem report, the rejection of the bail petition is justified. Ashraful Vs. The State— 1, MLR (1996) (AD) 372.
Section 498
Adinterim bail—When can be granted—
When the accused after obtaining adinterim bail restored to seeking extension of the period of bail in a number of times, and the High Court Division refused extension of the adinterim bail and directed the accused to surrender in the court of Sessions Judge in a case involving murder charge, there is nothing wrong in the said order. Further no order can be passed with regard to the bail of the accused when the bail petition is already pending before the High Court Division. Jafar AH Bali Vs. The State— 3, MLR (1998) (AD) 80.
Section 498
Anticipatory bail— Cancellation of— when cannot be made—
Whenever an accused is wanted in a case pending before a court of Magistrate, the usual course is that the accused must surrender before the Magistrate and seek his release on bail. He cannot seek bail direct from the High Court Division merely on the allegation that there is apprehension of his not getting fair treatment. However when an accused is granted adinterim bail by the High Court Division such adinterim bail cannot be cancelled without directing him to surrender before the court of Magistrate within the date fixed. Hamidul Haque Advocate Vs. The State— 3, MLR (1998) (AD) 158.
Section 498
Grant of bail-Discretionary power of court-Grant of bail to an accused in non-bailable case is discretion of the court. The refusal of bail in an arms case when trial was going on is not illegal. However if the trial cannot be concluded within reasonable time, accused may move fresh bail petition in appropriate court. Emran Hossain Vs. The State— 4, MLR (1999) (AD) 146.
Section 498
Anticipatory or pre-arrest bail— Jurisdiction of the High Court Division—
Both the High Court Division and Court of Sessions have concurrent jurisdiction under section 498 of the Code of Criminal Procedure which is not ancillary and subsidiary to the provisions of sections 496 and 497. The provision of section 498 is an exception to general rule of bail. Anticipatory or pre-arrest bail can only be granted in extra-ordinary and exceptional circumstances having regard to the limitations so that such exercise of power does not tantamount to judicial extravagance. The State Vs. Abdul Wahab Shah Chowdhury- 4, MLR (1999) (AD) 291.
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, (Criminal), 2019 (1) [6 LM (AD) 88]
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, (Criminal), 2020 [9 LM (AD) 113]
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 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.), (Criminal), 2019 (2) [7 LM (AD) 292]
Section 498
Santrash Birodhi Ain, 2009 (as amended in 2013)
Sections 6/8/9/10/13
Code of Criminal Procedure, 1898
Section 498
Bail–– It appears to us that the present case is not a case where discretion should have been exercised infavour of the accused-respondent because of the seriousness and gravity of the offence which is obviously connected with the safety and security of the State, as such we are not inclined to allow the bail of the accused-respondent Md. Mir Ibrahim @ Md. Ibrahim @ Md. Ibrahim Mir. The High Court Division without appreciating the facts and circumstances of the case as well as the security concern of the State granted bail to the accused-respondent which calls interference by this Division. .....Deputy Commissioner, Chattogram =VS= Md. Mir Ibrahim, (Criminal), 2023(1) [14 LM (AD) 314]
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 anticipatory bail order. Durnity Daman Commission vs Dr. Khandaker Moshar raf Hossain, 66 DLR (AD) 92
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-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 accused-appellant is aged about 90 years and he is suffering from serious ailment and is under treatment in jail hospital. The Appellate Division is inclined to enlarge him on bail.
The Appellate Division considered that the learned Advocate has submitted a medical report forwarded by Civil Surgeon, Satkhira wherein it has been advised that this applicant, being very old and ill, re- quires to stay within his family environ- ment. Considering the very old age and ailment of the applicant and also the sub- missions of his learned Advocate we are inclined to enlarge him on bail. Hence the prayer for bail of the convict-appellant Haji Ershad Ali Biswas be allowed.
Ali and others Vs. The State represented by the Deputy Commis- sioner, Satkhira and other (Criminal) 14 ALR (AD) 13
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-The Appellate Division provided 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 conse- quences 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 con- ferred 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 tho- rough 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 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. Professor Dr. Morshed Hasan Khan (Criminal) 16 ALR (AD) 16 ALR (AD) 59-70
Section 509A
Postmortem Report- The postmortem report was filed under Section 509A of the Code of Criminal Procedure as the Doctor was not available. Section 509A Cr. P. C. contemplates certain procedure but those were not complied with and for that the postmortem report could be left out of consideration. As the factum of murder has been proved by four eye witnesses the postmortem report as corroborative evidence is not absolutely essential. The assault on the deceased was proved by the eye witnesses and the same was corroborated by the informant P. W. 1 Nurul Islam who heard from the eye witnesses about the occurrence immediately after the occurrence. The learned Single Judge failed to see that the postmortem report even if not taken into consideration does not weaken the prosecution case for lack of corroboration of the eye witnesses. The State Vs. Ful Miah 7 BLT (AD)-337
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
The doctor who examined the victim and gave the report was not examined witness, even the I.O. did not say anything about the medical examination. P.W. stated that the victim was taken to Senba Health Complex, he also did not anything about medical report. We do not understand how the medical report was made exhibit when it was not formally produced before the court and how courts relied upon it. There is no evidence to show that the medical officer who made report was dead or was incapable of giving evidence or was beyond the limits Bangladesh and his attendance could not beocured without much delay. Unless the facts are proved or brought the notice of 1 court, a medical report cannot be admitted r evidence in view of the provisions of section 509A of the Code of Criminal Procedure. Mir Hossain & Ors. Vs. The State 12 BLT (AD)-58
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.
Section 517
So the Tribunal has the power to pass necessary order for disposal of the property seized during investigation or alamots in a case under the Act, 1974 invoking the aid of section 517 of the Code of Criminal Procedure.
The Appellate Division observed that in the Act, 1974, there is no provision as to how the property seized in connection with a case under the Act, 1974 or alamots of a case under the Act, 1974, shall be disposed of in case of conclusion of a trial or in a case which ends with the acceptance of a final report and discharge of the accused. However, section 29 of the Act, 1974 has provided that the provisions of the Code, so far as they are not inconsistent with the provisions of the Act, shall apply to the proceedings of the Special Tribunals, and such Special Tribunals shall have all the powers conferred by the Code as a Court of Sessions exercising original jurisdiction. It may further be stated that the Act, 1974 has provided the Tribunals with the power to pass necessary orders in case of confiscation of the property at the time of disposal of the case either in the form of acquittal or conviction, but it has not provided the Tribunals with any power to deal with any seized property or alamots after the disposal of the case. That being the position of the Act, 1974, the Tribunals cannot be left without any power to deal with such matter and so the legislature advisedly incorporated section 29 in the Act, 1974 as discussed hereinabove. So the Tribunal has the power to pass necessary order for disposal of the property seized during investigation or alamots in a case under the Act, 1974 invoking the aid of section 517 of the Code and in the instant case, the seized articles were definitely seized as it appeared to the law enforcing agencies that an offence appeared to have been committed because of the possession of the articles by accused-Ram Krisha Nath as contemplated in section 517 of the Code. Here, as found earlier in the first case, the police submitted final report and the Tribunal having accepted the final report discharged accused-Ram Krishna Nath from the case and in the second case, though charge sheet was submitted by the Police, the proceedings were quashed by the High Court Division on the clear finding that the allegations made in the FIR even taken to be true did not constitute any offence under section 25B of the Act, 1974 or under section 13 of the Ain, 2002 or under any law of the land and that the charge sheet submitted by the police accusing Ram Krishna Nath was malicious, calculated to victimize and harass him. That being the admitted factual and legal position, accused late Ram Krishna Nath was entitled to get return of the articles seized from him and the Tribunal was obliged to pass necessary order in that respect in exercise of its power under section 517 of the Code. Parul Nath and others Vs. The State (Criminal) 21 ALR (AD) 116-128
Sections 517 and 520
Disposal of property — Appellate Court's power to make orders — To make the orders the Appellate Court must be in session of the matter involving an order passed by Subordinate Court — It cannot be said that after passing the judgment and order on July 29, 1980 in disposing of the criminal appeal, the Court was no longer in session of the matter — The order passed by the Magistrate was no longer pending consideration by the Additional Sessions Judge — He had obviously no jurisdiction to pass the impugned order on September 11. 1980. Northern Engineers Ltd Vs. Moklesur Rahman 5 BLD (AD) 181.
Section 517(1)
For an order to be passed under the aforesaid provision 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, one of the conditions is that the goods must be produced before it or in its custody. Sompong Vs The State, 13 BLD (AD) 121
Section 522(1)
In the face of the Civil Court's order of injunction in favour of the accused a Criminal Court cannot accept the claim of possession in the disputed property made by a party who is obliged to get the order of injunction vacated — The appellant armed with an order of injunction in his favour could not be legally convicted for criminal trespass _The order of conviction and that of restoration of possession are set aside Samiruddin Ahmed alias Santir Mia Vs. The State 8 BLD (AD) 157.
Section 522
Restoration of possession of immovable property in a case of criminal trespass—Order for restoration of possession of immovable property under section 522 of the Code of Criminal Procedure may be made following conviction in a case under section 447 of the Penal Code when the dispossession was caused by use of force, show of force or criminal intimidation. Mohammad Ali Member Vs. Abul Fazal Mia Md. Mazedul Huq and another— 4, MLR (1999) (AD) 373.
Section 522(1)
Restoration of possession of the case land
The use of force, show of force or criminal intimidation at the time of criminal trespass the case land—It has already been that the use of force, show of force criminal intimidation at the time of criminal trespass upon the case land had not been held proved either 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. Mohammad Ali & Ors. Vs. A. F. M. Mazedul Huq Khan Lohani & Anr. 8 BLT (AD)-96
Section 522(1)
Power to restore possession of immovable property
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.
In the instant case the use of force, show of force or criminal intimidation at the time of criminal trespass 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. Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19 BLD (AD) 260
Section 523
The Provision of Section-523 Cr.P.C. empowers the concerned Magistrate to decided himself as to the entitlement of possession of the seized goods by either of its claimants namely, the informant- Islami Bank Bangladesh Limited or the 3rd party petitioner Al-Baraka Bank Bangladesh Ltd. Islami Bank Bangladesh Ltd. Vs. Al-Baraka Bank Bangladesh Ltd. & Ors. 7 BLT (AD)-256
Section 526
Power of the High Court Division — The High Court Division has power to transfer a case pending in the court of any Special Judge to the court of another Special Judge irrespective of the territorial limits of either of the two Special Judges — This transfer by the High Court Division may be anywhere within Bangladesh while the jurisdiction of transfer of a case by the Senior Special Judge is limited within his district The State Vs. The Divisional Special Judge Khulna and another 12 BLD (AD) 166.
Section 526
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. ...Mst. Fatema Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 79
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.
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
Even if the case of the accused is accepted that the Public Prosecutor rebuked him and made comment while Pw.l was examined cannot be the grounds for creation of apprehension in the mind of the accused that he would not get fair justice from the Divisional Special Judge, Barisal and such grounds do not appear to be bonafide. The High Court Division without issuing any Rule upon the State disposed of the application transferring the case from the Division Special Judge to the Sessions Judge, Barisal. Such kind of exercise of power by the High court Division cannot be approved. Anti-Corruption Commission -Vs- AKM Shamim Hasan and another 1 ALR(2012)(AD) 69
Section 526
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. ...Mst. Fatema Vs. The State & ors, (Criminal), 17 SCOB [2023] AD 79
Section 526(3)
Ensuring security of the informant and witnesses of the case, so that they may adduce their evidence in the Court without any fear–– 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. ––Appellate Division is of the view that justice would be best served if this Division 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. .....Fatema (Mst.) =VS= The State, (Criminal), 2023(1) [14 LM (AD) 454]
Section 526(1)(C)
Transfer of Case— When can be allowed—
When the accused apprehends threat to his life, the case against him may be transferred from one Sessions Division to another on such reasonable apprehension. The State Vs. Saman alias Faysal Ahmed and another— 3, MLR (1998) (AD) 160.
Section 526
Transfer of Session case—
Order of transfer of the Session Case from one court to another by the High Court Division without notice and showing any ground is held to be arbitrary and not sustainable in law. Moslemaddin (Md.) Vs. The State & another— 5, MLR 2000)(AD) 61.
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 528(2)
A transfer application in respect of a proceeding under Section 145 Cr.P.C. was filed before the S. D. M. who called for the record of the case and fixed a date of hearing but no order of stay was passed — The trying Magistrate having received the intimation of the S. D. M.'s order was not competent to dispose of the proceeding under Section 145 Cr.P.C. finally before the transfer application was heard by the S DM Md. Mafizur Rahman Vs. Ahdus Salam and others 1 BLD (AD) 213.
Section 528
The petitioner was named as an accused under various sections of the Penal Code including section 302 of the Penal Code. In that case police submitted a final report in favour of the petitioner and he was discharged by the learned Magistrate. A Naraji Petition having been rejected, the Sessions Judge under section 436 of the Code of Criminal Procedure directed for further enquiry and at that stage the application for transfer was filed- Held: The petitioner cannot at this stage interfere with judicial enquiry by filing an application for transfer. Haji Ali Asgar Bepari vs. the State & Anr. 6 BLT (AD)-129
Section 535(2)
Whether conviction of the accused who was not charged with an offence can be maintained — Since it appears that a failure of justice has been occasioned by the omission to frame a proper charge, the conviction cannot be maintained by taking recourse to Section 535 Cr.P C Joynal Abedin and others Vs. The State 5 BLD (AD) 257.
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-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 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
Irregularity in mentioning the section curable—
When the description of the offence is clearly mentioned but the section is wrongly noted, that does not cause any prejudice to the accused and is curable under section 537 Cr.P.C. Abul Kalam and others Vs. Abu Daad Gazi and another— 4, MLR (1999) (AD) 414,
Section 537
The acceptance of the charge sheet beyond the specified period without any formal prayer by the investigating officer for extension of the period of time may at best been an irregularity but the same is curable under section 537. Kali Pada Datta Vs. Chandra Dev & Anr. 6 BLT (AD) -244
Section 537
In the instant case, although the investigation was conducted by an Assistant Inspector and was not duly authorized by the order of Magistrate first Class, his report could still be held to submit fall within the purview of section 190(l)(b) of the Code, or in the alternative, can be accepted as a complaint within sub-section 1(a) of that section. Therefore trial on the basis of a report submitted by Assistant Inspector would not be vitiated as that would be only an irregularity curable under section 537 of the Code. Sri Bimal Chandra Adhikeri Vs. The State 12 BLT (AD)-83
Section 540
Money Laundering Protirdoh Ain, 2002
Section 13
Money Laundering Protirodh Ain, 2009 & 2012
Section 4
The Code of Criminal Procedure, 1898
Section 540
Recalling of P.W.8 is nothing but with intention to delay and drag the case for indefinite period– Appears from the material on record the defence side filed petition on 02-12-21 under section 540 of the Code of Criminal Procedure, 1898 in a belated stage i.e. after long 5 years more from the last date of the cross-examination of the P.W.8 when the prosecution had concluded the prosecution case. So, the recalling of P.W.8 is nothing but with intention to delay and drag the case for indefinite period of time. The Criminal Petition for Leave to Appeal is disposed of. The impugned judgment and order of the High Court Division is set aside. .....Durnity Daman Commission, BD =VS= Dr. Khandaker Mosharraf Hossain, (Criminal), 2022(1) [12 LM (AD) 512]
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 accused'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 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, (Criminal), 2019 (1) [6 LM (AD) 208]
Section 540
Section 540 is express in the possible term and it can not be said that the intention of the section is to limit its application to Court witnesses only. The power is available to the Court “if his evidence appears to it essential to the just decision of the case.” Hemayatuddin alias Auranga Vs. The State, 14 BLD (AD) 9
Section 540-The Court may at its dis- cretion recall and re-examine any person already examined. However, the second part of the section mandates the Court to summon and examine or recall and re-ex- amine any such person if his evidence ap- pears to it essential to the just decision of the case. Hence, it is the satisfaction of the Court concerned that the evidence is es- sential to the just decision of the case which will dictate whether or not any wit- ness will be recalled and re-examined.
The Appellate Division refered to the de- cision in the case of lal Shamji Soni v. Union of India and another reported orted in AIR 1991 Supreme Court 1346, where it was held as follows:
"The very usage of the words such as 'any Court', 'at any stage', or 'of any en- quiry, trial or other proceedings', 'any per- son' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. How- ever, the very width requires a corres- ponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any dis- cretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is es- sential to the just decision of the case." Begum Khaleda Zia Vs. The State and another (Criminal) 13 ALR (AD) 39-44
Section 540A-Whether the learned Special Judge rightly allowed the prayer for dispensation with the attendance of the petitioner before the Court or not.
The Appellate Division held that 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, on the same day, prayed before the Court for ex- amining the petitioner by a Board of doctors and to shift her in a specialized hospital, it is difficult to say that the petitioner was not incapable to appear before the Court personally. She is represented by the learned Advocates. Section 540A of the Code enables the Court to dispense with the personal attendance of the accused when he is represented by the Advocate. 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. 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. Begum Khaleda Zia-Vs. The Anti-Corruption & another (Criminal) 16 ALR (AD) 12-15
Section 549
The Army Act, 1952
Section 8(1), 8(2), 59(2), 94
Code of Criminal Procedure, 1898
Section 549
Since the accused-appellants were not on active service within the meaning of Section 8(1) of the Army Act,1952 the accused persons 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. Moreover, even if one were to accept for 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 Cr.P.C. In that view of the matter, there is no legal bar for trial of the accused appellants in the Criminal Court in the relevant case inasmuch as the offences committed are in the nature of murder simplicitor. (Per Md. Muzammel Hossain, J) ...Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), (Criminal), 2020 [9 LM (AD) 386]
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 simpliciter. (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), (Criminal), 2020 [9 LM (AD) 386]
Section 550
Read with Bangladesh Passport Order, 1973 Article-7 The Seizure/impounding of the Passport
The impounded Passports were neither stolen nor alleged to have been stolen nor was alleged that they would be used for committing any offence-section 550 of the Code of Criminal Procedure providing seizure of the passport had no manner application in the present case and correct procedure for seizure for the alleged purpose has been laid down in Article 7 of Bangladesh Passport Order 1973 which not been followed. Bangladesh & Ors. Vs. M. Aynul Haqi Ors. 12 BLT (AD)-91.
Section 561A-The inherent power of the High Court Division under section 561A of the Code can only be invoked if the proceedings are under the provisions of the Code. It does not provide any relief if the trials are not conducted under the provisions of the Code. Since the con- victions were made by the various Martial Law Courts, illegally constituted under the Martial Law Proclamations and Regu- lations and not under the Code, the inherent power of the High Court Division under the provisions of section 561A cannot be invoked. Siddique Ahmed vs Government of Bangladesh, 65 DLR (AD) 8
Section 561A-Stop Payment-Since the cheques were returned by bank with the endorsement "payment stopped by the drawer" it is to be presumed that those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under section 561 A of the Code. SM Redwan vs Md Rezaul Islam, 66 DLR (AD) 169
Section 561A-Legislature has not created any absolute bar in filing a petition of complaint before expiry of thirty days of the receipt of the notice issued under clause (b) of the proviso to section 138 as created in case of filing a petition of complaint after expiry of one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. Prematurity shall be cured the moment the period of thirty days expires and the payment of the dishonoured cheque is not made within the said period. Zahidul Islam (Md) vs Md Kamal Hossain, 66 DLR (AD) 180
Section 561A-Disputed questions of fact cannot be determined by the High Court Division by invoking its extraordinary jurisdiction under section 561A of the Code. What's more whether the allegations of abetment in manipulating the tender for sale of disputed properties are true or false can only be resolved during the trial of the case. The admissibility, propriety or sufficiencies of materials collected by the prosecution are matters of evidence. ACC vs Mehedi Hasan, 67 DLR (AD) 137
Section 561A-Exercising the inherent power by the High Court Division, the requirement is to see whether continuance of the proceeding would be abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The Criminal Procedure Code contains a detailed procedure for investi- gation, charge and trial and in the event the High Court Division is desirous of putting a stop to the known procedure of law, it must use a proper circumspection and great care in exercise of its inherent jurisdiction. ACC vs AAM Habibur Rahman, 67 DLR (AD) 278
Sections 561A-The settled principle is that while considering of the application under section 561A of the Code the High Court Division will not take into consideration of the defence papers. ACC vs AAM Habibur Rahman, 67 DLR (AD) 278
Sections 561A and 173-Non implicating any person as accused in a proceeding cannot be a ground for quashing the proceeding of the charge- sheeted accused when the prima-facie case had been established against him. ACC vs AAM Habibur Rahman, 67 DLR (AD) 278
Section 561A-Mere physical posses- sion of the counterfeit notes is not an offence punishable under section 25A of the Act but the intention as it transpires from the FIR, facts, circumstances on record and the other evidence it has become clear to us that criminal proceeding cannot be quashed at this stage of hearing because it needs evidence to be recorded by the court during the course of trial to establish the intention of keeping huge quantity of counterfeit note in the apartment. Abdul Wahed Gaffar vs State, 68 DLR (AD) 218
Section 561A-A proceeding cannot be quashed depending on alleged proce- dural error in the method of collection of evidence to be adduced and used. Anti- Corruption Commission vs Rezaul Kabir, 68 DLR (AD) 291
Section 561A-The contents of the FIR of each case, other facts and circum- stances disclosed the elements of offences alleged and those offences had been committed even before laying traps. Without taking into consideration whether the prima-facie cases against the accuseds had been made out or not in view of the facts and circumstances apparent from the FIR, charge-sheet and other materials. Anti-Corruption Commission vs Rezaul Kabir, 68 DLR (AD) 291
Section 561A-In an application under section 561A of the Code, there is little scope to scan the evidence, of witnesses and that since it is not a case of no evidence it is difficult to interfere with the judgment passed by the Tribunal. Sharif alias Shaira vs State, 69 DLR (AD) 41
Section 561A-The Court must act in accordance with the mandate of the statute and in delivering judgment or passing any order; it must see its power conferred by the statute and cannot attribute something beyond the scope of the relevant section of the statute. Khondker Latifur Rahman vs State, represented by the Deputy Commis- sioner, Chittagong, 70 DLR (AD) 25
Section 561A-Ordinarily the High Court Division cannot exercise its inherent power in awarding costs. There is no express provision in the Code authorizing the High Court Division to award costs in exercising its inherent power under section 561A of the Code. The only provision in section 344 of the Code which authorizes a criminal Court to award costs during trial of a case. Other than section 344 of the Code, sections 250, 544, 545, 546A of the Code empower a Court to pass an order to pay compensation only for defraying expenses of prosecution. Khondker Latifur Rahman vs State, represented by the Deputy Commissioner, Chittagong. 70 DLR (AD) 25
Section 561A-In exercising the jurisdiction under section 561A of the Code, the High Court Division shall have the discretion to award costs against a party under a very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the specific provisions of the Code to meet the situations: to prevent abuse of the process of any Court or to give effect to any order passed under the Code or otherwise to secure the ends of justice. Costs may also be given to meet the litigation expenses or can be exemplary to achieve the purposes. Khondker Latifur Rahman vs State, represented by the Deputy Commissioner, Chittagong, 70 DLR (AD) 25
Section 561A-The reasons on which the High Court Division awarded the costs against the accused do not come within the purview of section 561A and more so no such case was made out by the complainant in his counter affidavit. Khondker Latifur Rahman vs State, represented by the Deputy Commissioner, Chittagong. 70 DLR (AD) 25
Section 561A-For quashing a proceeding under section 561A of the Code, the High Court Division has scope only to see whether there are materials on record showing that the allegations made in the FIR and the charge sheet, constitute an offence. If there be any such material the proceeding shall not be quashed, in that case the trial Court will decide the case on the basis of evidence to be adduced by the parties. Begum Khaleda Zia vs State, 70 DLR (AD) 99
Section 561A-On perusal of the statements made in the FIR and the charge sheet it appears that there are some materials which may constitute offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 considering which the High Court Division held that 'there is clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947'. Begum Khaleda Zia vs State, 70 DLR (AD) 99
Section 561A-The informant lodged an FIR making specific allegations against the accused persons and the case started on that FIR. The police investigated into those allegations and submitted final report, but the learned Magistrate, considering the application filed by the informant against that final report and the materials on record including the FIR, without accepting that final report, ordered for a further investigation by judicial Magistrate, which was not illegal at all.
The Appellate Division observed that in this case a police case was lodged in the police station on the basis of an FIR. The police, after investigation, submitted final report stating that the allegations made in the FIR was false. That final report along with the police diary came before the learned Cognizance Magistrate-who was empowered either to accept the same or direct further investigation into the matter. In the present case the Magistrate, considering the application submitted by the informant and also examining the police diary made an order for further investigation into allegations by a Magistrate. The Appellate Division finds no illegality in this order. The contention that there was no complaint before the learned Magistrate for passing the order for further enquiry-is not correct. The informant lodged an FIR making specific allegations against the accused persons and the case started on that FIR. The police investigated into those allegations and submitted final report, but the learned Magistrate, considering the application filed by the informant against that final report and the materials on record including the FIR, without accepting that final report, ordered for a further investigation by judicial Magistrate, which was not illegal at all. Evidently there is no merit in this criminal al appeal. Hence this criminal appeal be dismissed. Mahmud Miah and another - Vs. The State and others (Criminal) 19 ALR (AD) 70-72
Section 561A
In a proceeding under section 561A of the Code of Criminal Procedure praying for quashment of a judgment and order of conviction and sentence there is no scope for re-assessment of the evidence on record. The inherent power conferred by section 561A of the Code of Criminal Procedure may be exercised to quash a proceeding or even a conviction and sentence on conclusion of trial if the court concerned had no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justice. Rajib Ullah -Vs. The State 5 ALR (AD)2015(1) 102
Section 561A -Disputed questions of fact cannot be determined in an application u/s 561A of the Code.
Prevention of Corruption Act, 1947
Section 5(2)
It is a settled principle of law that disputed questions of fact cannot be determined by the High Court Division by invoking its extraordinary jurisdiction under section 561A of the Code of Criminal Procedure. What's more whether the allegations of abetment in manipulating the tender for sale of disputed properties are true or false can only be resolved during the trial of the Case. In addition, the admissibility, propriety or sufficiencies of materials collected by the prosecution are matters of evidence. The allegations of abetment against respondent No.1 of all the criminal petitions in manipulating the tender for sale of abandoned properties have been prima facie found to be true in the police report submitted by the investigation officer duly empowered by the Anti-Corruption Commission. Admittedly, respondent No.1 of all the criminal petitions participated in the tender for sale of the properties in question and he is a beneficiary of the illegal transaction. Moreover, respondent No.1 of all the criminal petitions was involved in the alleged illegal transaction for purchasing the case properties either in his own name or in favour of his organization or in the name of his designated person from the principal accused. The aforesaid elements certainly attract the ingredients of abetment in manipulating the tender for sale of the abandoned properties. What is remarkable to note here is that abetment is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence. The Anti-Corruption Commission Vs.- Mehadi Hasan 5 ALR (AD)2015(1) 105
Section 561A
There were clear allegations to the effect that the complaint and some cited witnesses in the case being cheated by the accused persons had to pay a good amount as donation for a school which had no affiliation at all, that the appointment of the complainant and others in the said school was made deceitfully against money and that the collected money was misappropriated by the accused persons in collusion with each other as such the application u/s 561A is not maintainable. Md. Abu Syed Chand -Vs.-The State represented by the Deputy Commissioner, Rajshahi and another. 4 ALR (AD) 2014 (2) 203
Section 561A- Quashing a criminal proceeding under inherent power of the Court.
When a cheque is returned by the bank dishonored to the drawer owing to 'stoppage of payment' by the drawer, following which the drawer files a criminal case for giving him a fraudulent cheque, the Court is competent to decide the case on taking evidence adduced by the parties. The High Court was not justified in quashing the criminal cases u/s 561 of the Code of Criminal Procedure. S.M. Redwan Vs. Md. Rezaul Islam and others 3 ALR(2014)(1)(AD) 62
Section 561A- 561A of the Code of Criminal Procedure, merely safeguards all existing inherent powers possessed by the High Court Division to secure the ends of justice.
the inherent powers of the High Court Division is neither an alternative nor an additional in its correct sense and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available. This section confers no new powers on the High Court Division. It merely safeguards all existing inherent powers possessed by the High Court Division to secure the ends of justice. The section provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code. This provision should not be used to obstruct or divert the ordinary course of justice. The power under this section is special a extraordinary one, the main aim and object of which is to save the people from any agony of the abuse of the process of the Court and also is designed to do substantial justice. The High Court Division exceeded its jurisdiction in making the direction in exercise of inherent powers. The State: -Vs.-Md. Ariful Islam @ Arif 2 ALR (2013)(AD) 252
Section 561A- Inherent power of the Court
It has been consistently held by the Appellate Division that the High Court Division shall sparingly exercise the extra-ordinary power under section 561 Aof the code that too under specific conditions. When there is an alternative remedy available under the Code, this power shall not be invoked in respect of any matter covered by any provision of the Code. It is only when the matter in question is not covered by any specific provision of the Code, in that case only section 561A can come into operation, subject to the requirement that the exercise of this power must serve any of the three purposes mentioned in the section. The State Vs. Md. Aman Ullah Aman 2 ALR (2013)(AD) 23
Section 561A
Metropolitan Special Tribunal No.1, Dhaka by order dated 19.11.2007 took cognizance of the offence against the present petitioner and others under Section 25B (1) of the Special Powers Act, 1974. Being aggrieved by the aforesaid order dated 19.11.2007 the accused-petitioner preferred a Miscellaneous Application under Section 561A of the Code of Criminal Procedure before theHigh Court Division for quashing the order dated 19.11.2007 taking cognizance against him without prior sanction by the Government Rule was issued by a Division Bench of the High Court Division in Criminal Miscellaneous Case No.5017 of 2008. The High Court Division by the judgment and order dated 10.02.2009 discharged the Rule. Md. Abdul Basit -Vs- The State 1 ALR (AD) 160
Section 561A
Both P.Ws.1 and 2 indirectly wanted to say that they did not see the actual occurrence of seizure of country made pipe gun from the house of the petitioner but that both of them proved the seizure list and admitted their respective signatures on it, which proved recovery of arms from the house of the accused. The High Court Division also noted that P.Ws.1 and 2 did not have the courage to tell the whole truth but that they admitted putting signatures on the seizure list, which indirectly proved the genuineness of the case.
The Appellate Division observed that the High Court Division found that P.Ws. 4-8 deposed that on the night following 02.08.2001 at about 2.30 a.m. they searched the house of the accused- petitioner Soharab Uddin and seized one country made pipe gun from within a carton of biscuit and seized the pipe gun by preparing a seizure list. The High Court Division further found that P.W.4 proved the seizure list and his signature thereon. He also identified the country made pipe gun marked as material exhibit-1. Taking into consideration, the evidence of P.W.1 Sekender and P.W.2 Abdur Roaf, the local witnesses in whose presence the country made pipe gun was recovered, the High Court Division found that both of them proved the seizure list marked as exhibit-1 and P.Ws.1 and 2 also identified their signatures on the seizure list marked as exhibit-1(ka) and 2 (kha) respectively. The High Court Division, however, noticed that both P.Ws.1 and 2 indirectly wanted to say that they did not see the actual occurrence of seizure of country made pipe gun from the house of the petitioner but that both of them proved the seizure list and admitted their respective signatures on it, which proved recovery of arms from the house of the accused. The High Court Division also noted that P.Ws.1 and 2 did not have the courage to tell the whole truth but that they admitted putting signatures on the seizure list, which indirectly proved the ge- nuineness of the case. The findings arrived at and the decision made by the High Court Division are based on proper appreciation of law and facts and do not call for interference. Accordingly, this petition for leave to appeal is dismissed. Soharaf Uddin @Shohrab. -Vs. The State. (Criminal) 21 ALR (AD) 90-92
Section 561A
The powers vested under section 561A of the Code of Criminal Procedure are extra-ordinary in nature which are required to be exercised with a view to secure justice. These powers are not intended to be used to obstruct justice or cause impediment in its dispensation. Justice is a word which has a larger connotation and has to be understood in its proper perspective and spirit in the background of facts and circumstances of each case.
Once a cognizance Court took the cognizance of a case on the basis of charge- sheet that case cannot be sent for reinvestigation by a Judicial Magistrate because in the Code there is no such provision to reinvestigate any case by the Judicial Magistrate after taking cognizance and framing charge.
Without issuing any Rule no final relief/reliefs can be granted in violation of settled principles of maxim.
The Appellate Division opined that the learned Judges of the High Court Division can pass an appropriate order setting aside both the orders of the Courts below directing the trial Court to pass an order in accordance with law regarding framing of charge after issuance of Rule and hearing on merit, if it is found that framing of charge not according to law and beyond materials on record to secure the ends of justice. The Appellate Division previously in so many occasions directed the High Court Division that without issuing any Rule no final relief/reliefs can be granted in violation of settled principles of maxim, however, the case in our hand, clearly depicted that it is not exception from earlier cases which seriously deprecated by this Division. The Appellate Division therefore, of the view that the impugned judgment of the High Court Division is not sustainable in law. Accordingly, the petition is disposed of. Khalilur Rahman -Vs. Md. Alauddin Akon (Bir Muktijoddha) and others (Criminal) 21 ALR (AD) 25-29
Section 561A
As per provisions of section 138 of the Negotiable Instruments Act, prima-facie case against the petitioner had been made out. Since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceeding were not liable to be quashed.
The Appellate Division observed that it is not disputed that the petitioner issued cheques. The objects of issuance of those cheques were to pay the loan amount. Definitely, the petitioner issued those cheques in favour of the complainant to recover the outstanding by producing those cheques in the Bank for encashment. Accordingly in order to realize the loan, the complainant produced the cheques in the Bank for encashment which were bounced by the Bank. In such situation, the complainant issued legal notice giving the petitioner an opportunity to pay the de- faulted amount but the petitioner failed to pay the same within the stipulated period. Thus, as per provisions of section 138 of the Negotiable Instruments Act, prima- facie case against the petitioner had been made out. The High Court Division held that since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceeding were not liable to be quashed. The Appellate Division does not find any illegality in the judgment and order of the High Court Division which calls any interference by the Appellate Division. Accordingly, all the petitions are dismissed. Ehetasamul Haque -Vs. State and another (Criminal) 20 ALR (AD) 156-157
Section 561A
In a proceeding under section 561A the High Court Division should not be drawn to an inquiry as to the truth or otherwise of the facts which are not in the prosecution case.
The High Court Division cannot exercise its extraordinary powers unless the applicant has accompanied a copy of the FIR, the police report and the order taking cognizance of the offence by the competent court if he comes out with a case that the allegations do net constitute any offence, and if the applicant challenges his conviction on the ground that the conviction is based on no legal evidence, he is required to accompany a copy of the judgment along with the petition for satisfying the High Court Division that the conviction is based no legal evidence.
The High Court Division cannot exercise its powers if the applicant is a fugitive from justice.
The Appellate Division observed that there is no gainsaying that in the instant case the High Court Division has not at all applied its judicial mind while exercising its inherent powers. It has also travelled to that. extent that it has entertained the petition which has not been accompanied with a copy of the impugned judgment passed by the tribunal. In the absence of any judgment, how it has been satisfied that tribunal has abused its power in convicting the respondent or that the conviction has been given in the absence of legal evidence. Once again the Appellate Division observe that the High Court Divi- sion cannot exercise its extraordinary powers unless the applicant has accompanied a copy of the FIR, the police report and the order taking cognizance of the offence by the competent court if he comes out with a case that the allegations do net constitute any offence, and if the applicant challenges his conviction on the ground that the conviction is based on no legal evidence, he is required to accompany a copy of the judgment along with the petition for satisfying sfying the High Court Division that the conviction is based no legal evidence. Apart from that, there is no scope on the part of the High Court Division to exercise its extra ordinary powers. The High Court Division cannot exercise its powers if the applicant is a fugitive from justice. Anti-Corruption Commission -Vs. Md. Shahjahan Omar and another (Criminal) 20 ALR (AD) 25-27
Section 561A
Section 561A does not confer any new powers-it merely declares that such inherent powers as it may possess shall not be deemed to be limited or affected by anything contained in the Code. It can exercise this power for securing the ends of justice or to give effect to any order or to prevent the abuse of the process of the court. So, this is an extraordinary power and this extraordinary power ought to have been preserved as far as practicable for extraordinary and exceptional cases. They cannot usually be invoked when there is another efficacious remedy available to the applicant. Anti-Corruption Commission - Vs. Md. Shahjahan Omar and another (Criminal) 20 ALR (AD) 25-27
Section 561A
The High Court Division has scope only to see whether there are materials on record showing that the allegations made in the FIR and the charge sheet, constit-ute an offence. If there be any such material the proceeding shall not be quas-hed. In that case the trial Court will decide the case on the basis of evidence to be adduced by the parties in the case.
The Appellate Division held that for the purpose of quashing a proceeding, one of the following conditions must be fulfilled:
(1) Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused;
(II) Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court;
(III) Where there is a legal bar against the initiation or proceeding; continuation of the
(IV) In a case where the allegations in the FIR or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and
(V) The allegations against the accused al- though constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. Begum Khaleda Zia. - Vs. The State and another. (Criminal) 15 ALR (AD) 188-192
Section 561A -Section 561A of the Code of is to secure the ends of justice in the facts and circumstances of each case.
The Appellate Division held that the inherent jurisdiction is attracted in three cases. Firstly, "to make such orders as may be necessary to to give effect to any order un- der this Code". Secondly, "to prevent abuse of the process of any Court". Thirdly, "oth- erwise to secure the ends of justice". In the case of Md. Shamsuddin vs the State 40 DLR (AD) 69 at page 74 para 12 Mr. Jus- tice Shahabuddin Ahmed while expressing the majority view of the Court observed that "the High Court Division got inherent power under section 561A Cr. P.C. to make such orders as may be necessary 'to pre- vent abuse of the process of any court or otherwise to secure the ends of the justice.' This power may be exercised only in those cases which are not covered by any specific provisions of the Code. The inherent power of the court is undefined and indefinite and as such it must be exercised very sparingly and with great caution".
Md. Habib Jamal-Vs. The State (Criminal) 13 ALR (AD) 111-130
Section 561A read with Penal Code [XLV of 1860]
Sections 406/420/506 -If the allega- tions made in the FIR and the Charge Sheet taken at the face value accepted in their entirety are taken to be true, they at best disclose a claim for insur- ance money against the Insurance Com- pany and they do not constitute the of- fence alleged. Rather the claim being a civil claim for debt, the criminal pro- ceeding should not be allowed to con- tinue as a contrivance to put pressure upon the company or its executives for realization of the civil debt.
The Appellate Division observed that in the instant case the Magistrate upon ex- amining the complainant directed the Of- ficer-in-Charge, Fatullah Police Station to take necessary action in accordance with law. Accordingly, the petition of complaint was treated as an FIR and Fatullah P.S. Case No. 125 dated 27-04-2006 under sec- tions 406/420/506 of the Penal Code was started against the appellant and two other Senior Executives of the Company. Police submitted Charge Sheet under sections 406/420/506 of the Penal Code. If the alle- gations made in the FIR and the Charge Sheet taken at the face value accepted in their entirety are taken to be true, they at best disclose a claim for insurance money against the Insurance Company and they do not constitute the offence alleged. Rather the claim being a civil claim for debt, the criminal proceeding should not be allowed to continue as a contrivance to put pressure upon the company or its executives for realization of the civil debt. Md. Habib Jamal-Vs. The State (Criminal) 13 ALR (AD) 111-130
Section 561 A read with
Prevention of Corruption Act
[II of 1947]
Section 5(2) -Taking into consideration the facts and circumstances of the case, including the fact that the criminal proceedings against all the other co-accused, including the borrowers who are alleged to have been given loan by the bank, upon conniv connivance of other bank officials and the appellant, having been quashed the Appellate Division is of the view that further proceedings against the appellant will be a futile exercise. Moreo- ver, the occurrence having taken place more than 25 years ago, proceeding against the appellant is liable to result in time and expense leading to nought.
Md. Shafiuddin @Shafiuddin -Vs.- The State (Criminal) 7 ALR (AD) 146
Section 561A read with Penal Code [XLV of 1860]
Sections 420/406/468 -A criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused. The Appellate Division observed that High Court Division came to finding that no charge was framed in this case as yet and that there was scope for the petitioners to agitate the grievances at the time of framing of charge under section 241A of the Code of Criminal Procedure and that if the contentions of the petitioners were found to be correct they might get relief. The High Court Division noted that a criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused. The High Court Division came to a finding that in the instant case, the aforesaid re- quirements are absent inasmuch as from a bare reading of the petition of complaint (Annexure-A) it appeared that the allega- tions made therein rein clearly constituted prima facie offence under sections 420/406/468 and 109 of the Penal Code.
Md. Raifqul Islam and others. -Vs.- Md. Fakruddin Chowdhury and others. (Criminal) 7 ALR (AD) 151
Section 561A read with
Negotiable Instruments Act [XXVI of 1881]
Section 138(IA) (c) -The notice has been served in the 'Daily Sangram' newspaper which is not a National Newspaper having wide circulation and whether is a violation of the provision as laid down under section 138(1A)(c).
The High Court Division held that whether a notice has been published in a daily Bangla National Newspaper having wide circulation or not is obviously a mat- ter of fact and can be decided on merit after taking evidence by the trial court. If a daily national newspaper is very much available in around the area where the accused usually resides or having business can be said to have wide circulation. However since this is absolutely a discretion of the trial court to determine the question about the wide circulation of the daily newspaper, High Court Division is of the view that this question of fact is out of the ambit of jurisdiction under section 561A of the Code of Criminal Procedure, and cannot be quashed. Mohammad Hasan Vs. The State and other (Criminal) 7 ALR (AD) 129- 132
Section 561A read with Negotiable Instrument Act [XXVI of 1881]
Section 138 Exercise of jurisdiction under inherent power as envisaged un- der section 561A of the Code of Criminal procedure to have the criminal proce- dure quashed is an exception rather than a rule and the case for quashment must be treated as rarest of rare cases so that it can't scuttle or burry a prosecution case on flimsy and unfounded reasons. The High Court Division, though, is clothed with inherent power to quash a proceeding or to make such order or or- ders as may be necessary for the ends of justice that power should be exercised in appropriate case, sparingly and cautiously.
The Appellate Division of the view that the High Court Division in exercising its jurisdiction at the very first instance is not empowered to interfere with the trial proceedings by invoking jurisdiction under section 561A of Code of Criminal Procedure, 1898. It has been consistently held by Appellate Division that when the complainant stated that he had served a legal notice within 15 days from the date of the receipt of information of the return of the cheque, non-discloser of the date of service of notice in the complaint petition cannot be a ground for quashing the proceeding. Alhaj Golam Rasul Belal -Vs- Habi- bullah Shakir and another (Criminal) 9 ALR (AD) 30-35
Section 561A
Penal Code, 1860
Section 161 read with
Section 5(2) of the Prevention of Corruption Act, 1947 And
Section 561A of the Code of Criminal Procedure, 1898 And
Durnity Daman Commission Bidhimala, 2007
Rule 16:
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. …Anti Corruption Commission Vs. Md. Rezaul Kabir & ors, (Criminal), 8 SCOB [2016] AD 144
Section 561A
High Court Division shall have the discretion to award costs against a party under a very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the specific provisions of the Code to meet the following situations: (i) to prevent abuse of the process of any Court or (ii) to give effect to any order passed under the Code or (iii) otherwise to secure the ends of justice. Costs may also be given to meet the litigation expenses or can be exemplary to achieve the aforesaid purposes. .....Khondker Latifur Rahman =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 383]
Section 561A
For quashing a proceeding under section 561A of the Code, the High Court Division has scope only to see whether there are materials on record showing that the allegations made in the FIR and the charge sheet, constitute an offence. If there be any such material the proceeding shall not be quashed, in that case the trial Court will decide the case on the basis of evidence to be adduced by the parties. This Division in the case of Ali Akkas vs Enavet Hossain, reported in 17 BLD (AD) 44 held to bring a case within the purview of section 561A of the Code for the purpose of quashing a proceeding, one of the following conditions must be fulfilled:
(I) Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused;
(II) Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court;
(III) Where there is a legal bar against the initiation or continuation of the proceeding;
(IV) In a case where the allegations in the FIR or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and
(V) The allegations against the accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.' .....Begum Khaleda Zia =VS= State, (Criminal), 2018 (1) [4 LM (AD) 359]
Section 561A
The Code of Criminal Procedure, 1898
Section 561A r/w
The Penal Code
Sections 409/109 r/w
The Prevention of Corruption Act, 1947
Section 5(2)
On perusal of the statements made in the FIR and the charge sheet it appears that there are some materials which may constitute offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 conside-ring which the High Court Division held that `there is clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947'. .....Begum Khaleda Zia =VS= State, (Criminal), 2018 (1) [4 LM (AD) 359]
Section 561A
High Court Division cannot exercise its extraordinary power to quash the proceedings under 561A of Cr.PC–
It appears that the High Court Division has quashed the FIR filed by the Durnity Daman Commission against the respondent. It is our consistent view that until and unless the Court takes cognizance of the offence there is no legal proceedings pending before any Court of law and therefore, the High Court Division cannot exercise its extraordinary power to quash the proceedings. That the High Court Division erred in law in quashing the proceedings of the case. We find merit in the submission of the learned Counsel. The judgment of High Court Division is set-aside. The Durnity Daman Commission is directed to proceed with the ease in accordance with law. .....Durnity Daman Commission Vs. Engineer Mosharrf Hossen & 2 another, (Criminal), 2016-[1 LM (AD) 480]
Section 561A
The Code of Criminal Procedure, 1898
Section 561A r/w
Penal Code [XLV of 1860]
Sections 420/406/468
A criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused–
The Appellate Division observed that High Court Division came to finding that no charge was framed in this case as yet and that there was scope for the petitioners to agitate the grievances at the time of framing of charge under section 241A of the Code of Criminal Procedure and that if the contentions of the petitioners were found to be correct they might get relief. The High Court Division noted that a criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused. The High Court Division came to a finding that in the instant case, the aforesaid requirements are absent inasmuch as from a bare reading of the petition of complaint (Annexure-A) it appeared that the allegations made therein clearly constituted prima facie offence under sections 420/406/468 and 109 of the Penal Code. .....Md. Rafiqul Islam & others =VS= Md. Fakruddin & others, (Criminal), 2016-[1 LM (AD) 503]
Section 561A
The Code of Criminal Procedure, 1898
Section 561A r/w
Prevention of Corruption Act[II of 1947]
Section 5(2)
Taking into consideration the facts and circumstances of the case, including the fact that the criminal proceedings against all the other co-accused, including the borrowers who are alleged to have been given loan by the bank, upon connivance of other bank officials and the appellant, having been quashed the Appellate Division is of the view that further proceedings against the appellant will be a futile exercise. Moreover, the occurrence having taken place more than 25 years ago, proceeding against the appellant is liable to result in time and expense leading to nought. .....Md.Shafiuddin =VS= The State, (Criminal), 2016-[1 LM (AD) 527]
Section 561A
The Code of Criminal Procedure, 1898
Section 561A r/w
Penal Code, 1860 (XLV of 1860)
Sections 323, 325, 326 and 307
Considering the facts and circumstances we do not find that the learned Additional Metropolitan Sessions Judge, 2nd Court, Dhaka has committed any wrong or illegality in setting aside the impugned order dated 29.07.1999 passed by the learned C.M.M., Dhaka dismissing the case and as such the High Court Division also did not commit any wrong or illegality in upholding this judgment and order passed in Criminal Revision No.906 of 1999. .....Md. Shahidul Islam =VS= Shopon Bepari & another, (Criminal), 2016-[1 LM (AD) 530]
Section 561A
Nari-O-Shishu Nirjatan Daman Ain-2000
Section 11(Ga) and 30
The Code of Criminal Procedure, 1898
Section 561A
It would be an illegal harassment of the respondents and invoking its inherent jurisdiction under section 561A of the Code of Criminal Procedure quashed the proceedings to secure ends of justice– It is clear that if a petition of complaint is filed, the Tribunal is to see whether any affidavit has been filed stating the facts that the complainant requested one police officer as mentioned in sub-section(1) or empowered person to receive the complaint and failed and if it is found that the affidavit has been filed stating that fact, then the Tribunal will examine the complainant and if satisfied will send the petition of complaint for enquiry to any Magistrate or any other person and the concerned person shall within 7(seven) days submit a report to the Tribunal. If the Tribunal is not satisfied then he will dismiss the complaint.
It is clear that there is no proof in support of this part of the requirement of law and as such, the Tribunal ought to have dismissed the complaint, but it without doing so took cognizance on the plea that there were prima-facie materials in support of the allegation against the accused, but that was not sufficient. The Tribunal has to be satisfied that proof of both the requirements were available in the report. Thus taking cognizance of the offence in the instant case was illegal. Appellate Division finds no illegality in the impugned judgment and order passed by the High Court Division. .....Umme Kulsum (Sweety) =VS= Md. Nazmul Islam, (Criminal), 2022(1) [12 LM (AD) 696]
Sections 561A
The Negotiable Instruments Act, 1881 (Amendment Act 1994)
Sections 138, 141(b)
The Code of Criminal Procedure, 1898
Sections 561A
It is the argument of the appellant that on the complainant’s own case the appellant must be fixed with notice for payment at least from 4-1-96 and after the expiry of 15 days from that date, i.e., from 19-1-96, the cause of action should be taken to have arisen due to non-payment within the said period and the complaint was required to be filed within one month from the said date (19-1-96) in compliance with clause(b) of section 141. Admittedly the petition of complaint was filed long after that date i.e., on 18-4-96 and thus cognizance could not be taken upon such complaint. Unfortunately, the High Court Division failed to appreciate this simple point raised before it and wrongly rejected the application for quashing summarily under a misconception. For the reasons this appeal is allowed and the impugned proceeding is quashed. .....SM Anwar Hossain =VS= Md. Shafiul Alam (Chand) , (Criminal), 2022(1) [12 LM (AD) 617]
Section 561A
The Negotiable Instruments Act, 1881
Section 138
Code of Criminal Procedure, 1898
Section 561A
When the complainant stated that he had served a legal notice within 15 days from the date of the receipt of information of the return of the cheque, non-discloser of the date of service of notice in the complaint petition can not be a ground for quashing the proceeding– Appellate Division is of the view that the High Court Division in exercising its jurisdiction at the very first instance is not empowered to interfere with the trial proceedings by invoking jurisdiction under section 561A of Code of Criminal Procedure,1898. It has been consistently held by this Division that when the complainant stated that he had served a legal notice within 15 days from the date of the receipt of information of the return of the cheque, non-discloser of the date of service of notice in the complaint petition can not be a ground for quashing the proceeding. In this context reference may also be made to the decision of the case of Habibur Rahman Howlader -Vs- State and another reported in 53 DLR (AD) 111. This Division is of the view that the impugned judgment and order of the High Court Division is not sustainable in law. Accordingly, this Division finds merit in the appeal. Consequently the proceeding of C. R. Case No.3783 of 2004 under Section 138 of the Negotiable Instruments Act, 1881, now pending in the Court of Metropolitan Magistrate, Dhaka shall proceed in accordance with law. .....Alhaj Golam Rasul Belal =VS= Habibullah Shakir, (Criminal), 2022(1) [12 LM (AD) 672]
Section 561A
A criminal proceeding against a partner of a business firm — Once it is found that it was a partnership business and the complainant and the ac the witnesses under Section 161 Cr.P.C. - In the facts and circumstances of the ise, the High Court Division committed no illegality in refusing to quash the proceeding and directing the trial Court to include the trial on the basis of the available records within 3 months — The appellate Division directed the trial Court to conclude the trial within 3 months ailing which the proceeding will stand quashed. Azhar Ali Khan and others Vs. The State 5 BLD (AD) 75.
Section 561A
Quashing a criminal proceeding — In the absence of any challenge made in a previous civil suit between the parties regarding the genu-iness of the kabalas, the trial Court decreed the suit — The respondent cannot be allowed to harass the appellants by starting the criminal proceeding against them and the same is quashed Md. Farooque and others Vs. The State and another 5 BLD (AD) 80.
Section 561A
Since the appellants helped the police in discharging their duties, whatever the appellant's real motive might have been, their prosecution in the instant case would serve no useful purpose and the impugned proceeding will amount to an abuse of the process of the Court — The proceeding is quashed. Md Khorshed Ali and others Vs. The State and another 5 BLD (AD) 223
Section 561A
The Director and the Chairman of the Board of Directors of a Company are trustees in respect of the fund of the Company which is under their control and they can be proceeded against for misappropriation of the fund of the company — But this principle can not be applied to the facts of the present case — Therefore the criminal case against the appellants at the instance of the respondents, who retired from the company before filing of the complaint, is quashed as the dispute is a civil dispute. Md Yameen and another Vs. K. A. Basilar and others 6 BLD (AD) 305.Ref. 17 DLR (SC) 52; 34 DLR (AD) 47, AIR 1963 (Cal) 64, (1884) 1 Ch Div. 616.
Section 561A
Quashing of proceedings — Mere making of a false or untrue statement in a document does not constitute an offence of forgery, where the document is executed by a person who purports to execute it — The ingredients of the offence of cheating are not at all attracted upon the facts alleged in the case — The proceeding is quashed Radhahallah Sarker Vs. Pijush Kanti Chakravorty and another 7 BLD (AD) 32.
Section 561A
In the face of a clear averment in the petition of complaint that the accused totally denied the receipt of any money from the complainant, the question of civil liability does not arise and the High Court Division rightly refused to quash the impugned proceeding Abdur Rahim alias A. N. M. Abdur Rahim Vs. Enamul Huq and another 12 BLD (AD) 130.
Section 561A
Code of Criminal Procedure, 1898
Section 561A
Penal Code, 1860
Sections 467/468/469/471/472/420 and 34
Power under section 561A of the Code of Criminal Procedure by itself, makes it obligatory for the High Court Division to exercise the same with outmost care and caution– The High Court Division will not quash the proceeding if it is required to call upon appreciation of evidence. It cannot assume role of appellate Court while dealing with an application under section 561A of the Code of Criminal Procedure. In the instant case, since the petition of complaint discloses prima facie case against the accused respondents punishable under the aforesaid provisions of law, Appellate Division is of the view that the High Court Division has committed an error of law in setting aside the cognizance taking order of the Magistrate. It failed to exercise its power under section 561A of the Code of Criminal Procedure having regard to the facts and circumstances of the case. Considering the contents of the petition of complaint, cognizance taking order of the Magistrate and other materials on record, this Division finds substance in this petition. The impugned judgment and order of the High Court Division dated 15.01.2019 passed in Criminal Miscellaneous Case No.52894 of 2017 is hereby set aside. The trial Court is directed to proceed with the case in accordance with law. ...Sourthern University Bangladesh =VS= Md. Osman, (Criminal), 2021(2) [11 LM (AD) 147]
Section 561A
A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution– This section has given the widest jurisdiction to the High Court Division to exercise of its inherent power, to secure the ends of justice, to prevent the abuse of process of the Court or to give effect to any order under this Code. Therefore, the inherent power of the Court must be exercised cautiously and judiciously.
Pakistan Supreme Court in the case of State-Vs-Monzoor Ahmed reported 18 DLR (SC)444 that “Plea of alibi without calling evidence in support of it is no plea at all”.
“A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case”.
This Division has no hesitation in saying that the quashing of proceeding was illegal. Therefore, the impugned judgment and order of the High Court Division cannot be sustained in law and hereby set aside. ...Deputy Commissioner, Gopalgonj =VS= Kamrul alias Kamruzzaman, (Criminal), 2021(1) [10 LM (AD) 390]
Section 561A
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 9(Ka) r/w
The Code of Criminal Procedure
Section-561A
Quashment– Abetment of suicide– Considering the facts and circumstances as revealed from the prosecution papers our considered view is that there was no direct incitement or mensrea on the part of the appellant which comes within the definition of abetment of suicide. In this case, the materials on record, prima-facie, do not disclose an offence under section 9Ka of the Ain and therefore the accused appellant ought not to be tried upon the charge.
The judgment and order of the High Court Division is set aside and the proceeding is quashed. .....Dr APM Sohrab-uz-zaman =VS=State, [1 LM (AD) 466]
Section 561
The Negotiable Instrument Act, 1881
Section-138 r/w
Code of Criminal Procedure, 1898
Section 561
The cheques were issued by the respondent which were returned with endorsement, "payment stopped by the drawer". Since the cheques were returned by bank with the endorsement "payment stopped by the drawer" it is to be presumed that those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in Section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under Section 561A of the Code of Criminal Procedure. The judgment and orders of the High Court Division are hereby set aside. The concerned Courts are directed to proceed with the cases in accordance with law. .....S.M. Redwan =VS= Md. Rezaul Islam, [3 LM (AD) 605]
Section 561A
The Negotiable Instrument Act, 1881
Sections 138, 140
The Code of Criminal Procedure
Section 561A
The disputed questions of facts which should be decided after appreciating the evidence at the trial–The High Court Division in disposing the application under the provision of section 561A of the Code does not require to formulate any disputed question of facts, rather, only to see whether the story of the F.I.R. or petition of complaint discloses the criminal offences or not. Therefore, the High Court Division exceeded the extraordinary jurisdiction by quashing the proceeding. Accordingly, the judgment of the High Court Division is set aside. ...Ashfaq Hossain =VS= The State, [10 LM (AD) 515]
Section-561A
Quashment–
Moudud Ahmed has not converted the property for his own use. The alleged agreement for sale was executed in favour of Monjur Ahmed, who is a distinct person and not a member of his family. Though the petitioner has challenged the order of taking cognizance of the offence, we noticed that the initiation of the proceeding itself is an abuse of the process of the court and no fruitful purpose will be served if we allow the criminal case to proceed with. The proceeding, is therefore, liable to be quashed. .....RAJUK =VS=Manzur Ahmed & Others, (Civil), 2016-[1 LM (AD) 1]
Section 561A
The Penal Code, 1860
Section 161 r/w
The Prevention of Corruption Act, 1947
Section 5(2) r/w
The Code of Criminal Procedure, 1898
Section 561A r/w
Durnity Daman Commission Bidhimala, 2007
Rule 16
A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. .....Anti Corruption Commission =VS= Md. Rezaul Kabir, [3 LM (AD) 509]
Section 561A
The Rule issuing Bench of the High Court Division overstepped in its jurisdiction in not considering that the petitioner filed the application under section 561A of the Code of Criminal Procedure without surrendering to the jurisdiction of the appropriate court and thus illegally entertained the application under section 561A and stayed further proceedings of the case. ...Dr. Zubaida Rahman Vs. The State & anr, (Criminal), 17 SCOB [2023] AD 54
Section 561A
It is well settled that when a person seeks remedy from a court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under section 561A of the Code of Criminal Procedure, he/she ought to submit to due process of justice. The Court would not Act in aid of an accused person who is a fugitive from law and justice. ...Dr. Zubaida Rahman Vs. The State & anr, (Criminal), 17 SCOB [2023] AD 54
Section 561A
Madok Drabbya Neontron Ain, 1990
Section 22(Ga)
The Code of Criminal Procedure
Section 561A
It transpires from the FIR that so many persons gathered in the house of accused-Victor Rojario for immoral purpose. But this fact does not constituted any offence within the mischief of section 22(Ga) or any other sections of the Madok Drabbya Neontron Ain, 1990. ––It is Appellate Division’s considered opinion that there is no illegality and infirmity in the impugned judgment passed by the High Court Division, which calls for interfered by this Division. .....The State =VS= Md. Ramizuddin, (Criminal), 2022(2) [13 LM (AD) 568]
Section 561A
Section 241A and 265C— Distinction between—
Section 241A operates in respect of court of Magistrate and section 265C operates in respect of court of Sessions. When the civil court is in seisin of the matter, the parties cannot be directed to lodge complaint before the Magistrate in respect of offence relating to civil court proceedings. High Court Division can quash such proceedings under section 561A Cr.P.C. Latifa Akhter and others Vs. the State and another— 4, MLR (199.9) (AD) 187.
Section 561A
Nari-O-Shishu Nirjatan Daman Ain, 2000
Section 32
The Code of Criminal Procedure, 1898
Section 561A
Quashment of proceeding–– Invoking under section 561A of the Code of Criminal Procedure–– The High Court Division committed serious error in considering the evidence of P.W-1 and medical report in exercising the power under section 561A of the Code of Criminal Procedure at this stage when the prosecution yet not completed to adduce its evidence. The High Court Division has not been empowered to usurp the jurisdiction of the trial Court invoking section 561A of the Code of Criminal Procedure. .....Hasina Akhter =VS= Amena Begum, (Criminal), 2022(2) [13 LM (AD) 598]
Section 561A and 369
Quashment of proceedings and correction of clerical errors- two defferent aspects—Proceedings of a Criminal Case can be quashed under section 561A while mere clerical errors may be corrected under section 369 Cr.P.C. Judgment cannot be setaside under section 369 Cr.P.C. for rehearing. Shahiduddin (Md.) Vs. Md. Rahalullah and others- 5, MLR (2000)(AD) 62.
Section 561 A
Quashment— Exercise of inherent power—As to re-hearing of case decided on merit—
Ordinarily the court will never allow prayer for re-hearing when the matter has already been disposed of on merit. But the court may allow rehearing in rare case by exercise of its inherent power to prevent miscarriage of justice apparent on the face of the record. Abu Yahaya Nurul Anowar @ Anowar Vs. The State and another— 1, MLR (1996)(AD) 362
Section 561A-Whether a proceeding under section 561A of the Criminal Procedure Code is to be quashed depends upon the facts of the case itself. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-Delay is by itself no ground for quashing the criminal proceeding. But machinery of justice should not be allowed to harass any innocent person. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-When a prosecution arises out of ill-motive or improper motive the machi- nery of administration of justice need not be available to such person. Reason of delay in lodging FIR is unconvincing. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-The informant's plea that he could not lodge FIR due to alleged lawlessness even after 1975 although there was constitutional government for over 4 years except a Martial Law Government for a brief period is unacceptable. The proceedings are quashed. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-Mere delay in lodging a complaint is not a ground for quashing a proceeding. There may be circumstances in which lodging of FIR as to commission of an offence may be delayed. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-Explanation for delay in lodging FIR was given, i.e. fear of life from very influential persons. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-Delay raises doubt about the truth of allegation. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-Principles upon which exercise of extraordinary powers under section 561A CrPC is made have been stated. Md Sham- suddin vs State 40 DLR (AD) 69.
Section 561A-Facts of the instant case do not bring it within the ambit of exceptional circumstances in which the extraordinary power of the Court may be exercised. Md. Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-A timely GD entry of course strengthens the allegation made in the complaint and its absence may create doubt about it; but doubt in the allegation is a matter to be considered at the trial only. Md Shamsuddin vs State 40 DLR (AD) 69.
Section 561A-The fact that the accused were tried and found guilty and then unsuccess- fully filed an appeal and a revisional application cannot be a ground, in the facts of the present case (i.e. absence of any legal evidence), for refusing to exercise the Court's inherent power to secure the ends of justice by way of setting aside their conviction. Mofuzzal Hossain Mollah vs State 45 DLR (AD) 175.
Section 561A-In a proceeding under this provision the court should not be drawn in an enquiry as to the truth or otherwise of the facts which are not in the prosecution case. HM Ershad vs State 45 DLR (AD) 48.
Section 561A-Mere plea of right of private defence cannot be a ground for quashing the criminal proceeding, for such plea is to be established by the accused who takes it. A criminal proceeding is liable to be quashed only if the facts alleged in the First Information Report of complaint petition, even if admitted, do not constitute any criminal offence or the proceeding is barred by any provision of law.
Where disputed facts are involved, evidence will be necessary to determine the issue. The appellants have produced an order of temporary injunction against the complainant's party. This must be considered along with other evidence during the trial. Their application for quashing the proceedings is found to have been rightly refused by the High Court Division. SM Khalilur Rahman vs State 42 DLR (AD) 62.
Section 561A-Questions whether the occurrence was accidental and whether the petitioner had intention to commit mischief to the complainant needs evaluation of evidence to be led by the prosecution which cannot be stifled by exercising power for quashment. When allega- tions create both civil and criminal liabilities it is for the complainant to choose any or both of the forums for redress of grievance. Tofazzal Hossain Chowdhury vs Mir Amanullah 45 DLR 263.
Section 561A-Stay of proceeding-In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102.
Section 561A-It has been asserted that the FIR itself was lodged by the complainant after receiving an order from the Home Ministry and not on his own. A prosecution cannot be quashed just because it was initiated at the instance of the Home Ministry.
The question of possession can only be decided on evidence and not on submission on law as to what constitutes possession. The question whether the proceeding should be quashed or not should be decided on facts alleged in the FIR and charge-sheet. The accused's general denial that the facts disclosed in the FIR are not true will not do. To succeed, the accused must show that the facts alleged by the prosecution do not constitute any offence or that the prosecution is otherwise barred by law. Hussain Mohammad Ershad vs State 43 DLR (AD) 50.
Section 561A-Quashing of proceeding- Court will be loath to stifle a prosecution at the initial stage unless facts are such as would attract inference that even upon admitted facts no case can be made out and continuation of the proceeding would be an abuse of the process of the Court. Al-haj Md Serajuddowlah vs State 43 DLR (AD) 198.
Section 561A-There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realisation of money. both can stand together. Khondaker Mahatab uddin Ahmed vs State 49 DLR (AD) 132.
Section 561A-The complainant has the option to activate prosecution of the petitioners under the Immigration Act, 1982 as well, but if the allegations contain ingredients under the Penal Code, the complainant's case before the Magis- trate cannot be stifled by quashing. Noor Jahan Begum vs State, being represented by the Deputy Commissioner 49 DLR (AD) 106.
Section 561A-The Drug Control Ordinance is an additional forum for trying drug offences. Taking of cognizance and framing of charge by the Tribunal under the Special Powers Act in respect of offences relating to possession of spur- ious medicine, are not illegal and the prosecutings thereof are liable to be quashed.
Ordinance No. VIII of 1982 has been promul- gated not with a view to excluding all other trials on the same offence but as an additional forum for trying drug offences. If the same offence can be tried by a Special Tribunal under the Special Powers Act it cannot be said that the accused- petitioner has an exclusive right to be tried by a Drug Court only. As on the petitioner's own showing he has been charged only under section 25C(d) of the Special Powers Act by the Senior Special Tribunal, we do not find any illegality in the proceedings. Ashraf Ali @ Asraf Ali vs State 49 DLR (AD) 107.
Section 561A-It cannot be said that the Court was wrong in holding and acting on the premises that the dispute between the parties arising out of a joint stock should be settled in the civil Court and the criminal proceeding be quashed. Ansarul Haque vs Abdur Rahim 49 DLR (AD) 145.
Section 561A-In view of the complainant's case that he delivered goods in good faith on the accused's inducement of partpayment and promise to pay the balance price within 3 days but subsequently betrayed, it cannot be said there is no prima facie case against him the High Court Division rightly refused to quash the proceeding. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu 46 DLR (AD) 180.
Section 561A-The inherent jurisdiction of the High Court Division would be available even to a party who had lost in revision before the Sessions Judge.
In this connection this Court, however, referred to the limited scope of section 561A and observed that this inherent power is neither an additional power nor an alternative power of the Court, that this power is to be exercised very sparingly keeping itself within the bounds of this provision and that a revision petition cannot be brought in the camouflage of a petition under section 561A. Sher Ali vs State 46 DLR (AD) 67.
Section 561A-The inherent power under section 561A can be invoked at any state of the proceeding, even after conclusion of trial, if it is necessary to prevent the abuse of the process of the Court or otherwise to secure the ends of justice.
Appellant was convicted solely on the statement of a coaccused who, however, did not implicate himself in the crime but shifted the blame upon others including the appellant. This Court found that there was no "confession" at all as its maker did not implicate himself in the crime and further that this statement was not corroborated by any other evidence and consequently the conviction was based on 'no evidence' which could be quashed by the High Court Division in exercise of its inherent power under section 561A. Sher Ali vs State 46 DLR (AD) 67.
Section 561A-The inherent power may be invoked independent of powers conferred by any other provisions of the Code. This power is neither appellate power, nor revisional power, nor power of review and it is to be invoked for the limited purposes.
This power may be exercised to quash a proceeding or even a conviction on conclusion of a trial if the Court concerned got no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence, or the conviction has been based on 'no evidence' or otherwise to secure ends of justice. Sher Ali vs State 46 DLR (AD) 67.
Section 561A-The decision of the judges that the application under section 561A is liable to be rejected for lack of jurisdiction is totally erroneous and it is held that the High Court Division has jurisdiction to entertain such an application but whether interference will be made in a particular case is altogether a different matter.
The general principle is that the power being extraordinary its exercise also will be rarity. The "total bar" in section 439(4) of the Code, as spoken of by the learned Judges, is only against further revision-that is, revisión under section 439(1) of the Code and not against the Court's inherent jurisdiction which is altogether different from any other jurisdiction under the Code. The High Court Division, on the one hand, wilfully disregarded this Court's decisions, and, on the other hand, flouted Article 111 of the Constitution. This cannot be countenanced and must be disapproved strongly. Sher Ali vs State 46 DLR (AD) 67.
Section 561A-A litigant should not be allowed to move this Court under section 561A of the Code when other remedy is available to him under the Code.
Section 561A-That a Minister is personally interested in the case against the accused, though found to be true, by itself is not sufficient to conclude that the allegation against the accused is false. The High Court Division observed rightly that the proceeding cannot be quashed as it remains for the prosecution to establish the allegation by adducing evidence in trial. Engineer Afsaruddin Ahmed vs State 47 DLR (AD) 10.
Section 561A-In view of the unusual facts and circumstances of the case i.e. reinvestigation by the Criminal Investigation Department to be a malafide act to create cleverly a plea of alibi for a particular accused the order of the High Court Division allowing quashment need not be interfered with. Afia Khatoon vs Mobassawir Ali 47 DLR (AD) 62.
Section 561A-Examination of the existing materials on record taking into account the defences that the petitioner might offer at the trial, whatever be the merit of such an exercise, is certainly rot the method of disposal of an application under section 561A moved after framing of charge in the case.
After framing a charge, an application under section 561A CrPC to quash the proceedings is still available to the accused-petitioner on the ground that the allegation of facts even if true do not support the accusation or any other offence against him. The charge itself may be impugned but it is not the function of the trial Court while framing charge or the Court exercising juris diction under section 561A CrPC to examine the admissibility, relevance, propriety or sufficiency of materials. For, all these questions, specially in a criminal trial, are mixed questions of fact and law which cannot be resolved in an abstract manner without the facts surfacing at the trial. Moudud Ahmed vs State 48 DLR (AD) 42.
Section 561A-A wide conclusion that after framing of charge no application under sections 561A CrPC lies should be read in the observation of the High Court Division-"I do not agree with the learned Counsel of the petitioner that at this stage, after framing of charge, the proceedings cannot be proceeded with". Moudud Ahmed vs State 48 DLR (AD) 42.
Section 561A-There may be cases where allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, and in such cases it would be legitimate for the High Court Division to hold that it would be manifestly unjust to allow process of the criminal Court to be issued against an accused person.
The High Court Division may interfere under section 561A even during Police investigation cognizable offence is disclosed and still more if no offence of any kind is disclosed because in that case the Police would have no authority to under- take an investigation. But the usual and well settled practice is that a criminal proceeding can only be quashed after cognizance has been taken and process issued thereupon subject to the fun- damental principle that the power of quashing is and should be very sparingly exercised and only to prevent the abuse of the process of the Court. Syed Mohammad Hashem vs State 48 DLR (AD) 87.
Section 561A-A Criminal Proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for prosecution The High CourtDivision deviated from a well known norm of disposal of an applica- tion for quashing criminal proceeding by taking into account the defence version of the case. Rehela Khatun vs Abul Hassan 48 DLR (AD) 213.
Section 561A-Whether in the facts of a particular case a higher section is attracted can be considered at the time of framing of charge. It is not necessary to amend the charge-sheet to include a higher offence. Mokaddesh Mondal vs State 50 DLR (AD) 186.
Section 561A-Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial deception has also been alleged. The High Court Division rightly quashed the proceeding. Rafique vs Syed Morshed Hossain 50 DLR (AD) 163.
Section 561A-Subsequent allegations will not save limitation for prosecution-The require- ment under the law is that the complaint against nonpayment of money has to be filed within one month of the date on which the cause of action arises The High Court Division wrongly rejected the application for quashing. SM Anwar Hossain vs Md Shafiul Alam (Chand) 51 DLR (AD) 218.
Section 561A-Where a criminal proceeding has been initiated in a competent court and it cannot be shown that such proceeding is allowed to continue in "abuse of process of court" and need be quashed "for ends of justice" dispensation of personal appearance of the accused before such court does not fall within the meaning of section 561A CrPC. Shahid Miah vs State 53 DLR (AD) 11.
Section 561A-There is no distinction between 'principal in the first degree' and 'principal in the second degree.' Under section 111 of the Penal Code an abettor is liable for a different act if that was probable consequence of the abetment. This is applicable to the accused guarantor. Islami Bank Bangladesh Ltd vs Md Habib 55 DLR (AD) 19.
Section 561A-The High Court Division found that the complaint petition discloses an offence of inducement by the accused to part with money. By such inducement the complainant paid money to the accused on the undertaking by the latter to repay the same as and when complainant demanded it. But the accused misappropriated the money by issuing cheques which were dis- honoured. This establishes prima facie case of deception. Delwar Hossain vs Rajiur Rahman Chowdhury 55 DLR (AD) 58.
Section 561A-Under section 138 of the Negotiable Instruments Act an offence is com- mitted if a cheque is dishonoured and if payment is not made within 15 days after receipt of a legal notice. It is a settled law that criminal proceeding can be proceeded independently of the civil suit. Monzur Alam vs State 55 DLR (AD) 62.
Section 561A-Where the prosecution upon exhausting all processes to secure attendance of witness is not in a position to say if any witness will be available at all. In a case of such extra- ordinary kind the question of delay in considering the prayer for quashing of the proceeding may reasonably weigh with the Court. Bangladesh vs Md Amjad Ali Mridha 56 DLR (AD) 119.
Section 561A-Once quashing of pro- ceedings of criminal case on the ground of delay is made general that shall destroy the concept of administration of criminal justice and finally lead to anarchy. Bangladesh vs Md Amjad Ali Mridha 56 DLR (AD) 119.
Section 561A-There is no bar for the complaint case against the respondent to proceed side by side with the winding up proceeding of the company owned by the complainant-petitioner and the convict-respondent. Amir Hossain vs MA Malek 56 DLR (AD) 146.
Section 561A-To meet the ends of justice the conviction under section 4 of the Anti- Terrorism Act is maintained but the sentence of rigorous imprisonment for life is modified to 10 years rigorous imprisonment with fine as ordered. Jahangir Alam vs State 56 DLR (AD) 217.
Section 561A-In the background of the facts this is not a case of exceptional nature calling for quashing on the ground of delay or for exercise of discretion or of doing complete justice. State vs Md Arab Ali, Ex-Manager, Rupali Bank 57 DLR (AD) 102.
Section 561A-From the first information report it appears that contents thereof even if accepted in its entirety no prima facie case is disclosed and, as such, the High Court Division did not commit any illegality in passing the impugned judgment and order quashing the proceeding. State vs Md Nasim 57 DLR (AD) 114.
Section 561A-Relationship between the complainant and the accused being that of Directors of a private Limited Company, prin- ciples of partnership shall apply. As such spending of money by petitioner No.1 as Managing Direct- or cannot be termed misappropriation or breach of trust of the fund of the company. Remedy of the complainant, if any, is by way of suit for accounts. Anarul Islam vs State 58 DLR (AD) 7.
Section 561A-Since the first information report discloses a prima facie case against the petitioner and to that effect the charge-sheet has been submitted, there is no substance in the sub- mission made on behalf of the petitioner for quashing the proceedings. AHS Rahman vs State 58 DLR (AD) 63.
Section 561A-Before taking of cognisance of a case by the competent court or tribunal a proceedings cannot be said to be pending and accordingly, a proceeding cannot be quashed unless cognisance in respect thereof has been taken and process issued. Abdul Huque vs State 60 DLR (AD) 1.
Section 561A-Availability of alternative remedy by way of appeal or revision will not stand on the way when the question of law and interpretation of statute is involved. Bangladesh vs Iqbal Hasan Mahmood 60 DLR (AD) 147.
Section 561A-Since the date of receipt is a question of fact to be ascertained at the time of trial non-disclosure of such fact in the complaint petition cannot render the proceeding liable to be quashed to the great prejudice of the complainant who is entitled to prove his case on evidence. Nizamuddin Mahmood vs Abdul Hamid Bhuiyan 60 DLR (AD) 195.
Section 561A-Jurisdiction to quash-This is not a case which is barred by any law nor this is a case in which the contentions of the complaint, even if admitted in its entirety, no offence is disclosed. The stage of considering the evidence has also not yet reached as the recording of evidence has not even started. Faridul Alam vs State 61 DLR (AD) 93.
Section 561A-Inherent power of the High Court Division is generally exercised where no other remedy is available for obtaining justice in the cause it should not be invoked where another remedy is available. This power has not been vested upon the High Court Division where another remedy is available. This is an extra- ordinary power and is exercised in extraordinary circumstances in the interest of justice. Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Section 561A-Whether the appellant has disproportionate wealth, he has concealed his known source of income, there is mis-joinder of charges and the trial of the appellant on facts allegedly committed prior to the promulgation of Durnity Daman Commission Ain, 2004 constitute an offence under the Durnity Daman Commission Ain are disputed facts can only be decided on evidence at the trial. Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Section 561A-The inherent power of the Court is undefined and indefinite and, as such, it must be exercised very sparingly and with great caution. Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Section 561A-The provisions of the Code provide that the administration of criminal justice should be allowed to proceed in the usual manner without interruption. If the High Court Division interferes with the case in the midst of the trial it will have to set up a wrong precedent by which instead of the cause of justice being advanced had really been stifled. Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Section 561A-Since the prosecution case is almost over and the appellant put his defence by cross-examining the witnesses, in view of the consistent views of the superior Courts of this sub-continent that the High Court Division which exercising its power under section 561A of the Code should not usurp the jurisdiction of the trial Court. Habibur Rahman Mollah vs State 62 DLR (AD) 233.
Section 561A-No prima facie case was made out against the respondent in the first information report and the District Anti-Corrup- tion Officer, Gazipur without examining the necessary papers of the authority (IPSA) specially bill No.4 dated 29-10-1994 lodged the first information report.
During investigation by police usually the Court does not interfere under section 561A of the Code but in the instant case is a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. State vs Lailun Nahar Ekram 62 DLR (AD) 283.
Section 561A- There is no legal impedi- ment to file a criminal case even if a civil suit is pending on the selfsame allegations provided the ingredients of the offence are present Khandaker Abul Bashar vs State 63 DLR (AD) 79.
Sections 561A & 145-When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under section 145 CrPC. Abul Bashar vs Hasanuddin Ahmed 51 DLR (AD) 14.
Sections 561A, 439A & 439(4) The Sessions Judge's decision is not final in relation to a person who has not filed the revisional applica- tion 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 applica- tion, 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 power for the limited purposes as set out in that, section namely, 'to give effect to any order under the 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.
Section 561 A
Quasfament of Proceedings—On further inquiry-when not permissible—
The order of the Sessions Judge directing further enquiry when validly made on setting aside the order of the Magistrate accepting final report on discussion of merit in a case not triable by him cannot be enterfered with and the further proceedings initiated pursuant thereto cannot be quashed under the inherent power of the court. Md. Abdus Sabur Khan & another Vs. Md. Nurul Islam Shah & another— 1, MLR (1996) (AD) 363.
Section 561 A
Quashment of Proceedings— Not permissible on the basis of defence materials—
A criminal proceeding cannot be quashed on the basis of defence materials which are not part of the prosecution record. Defence materials can well be adduced into evidence during trial. Most Rahela Khatoon Vs. Md. Abul Hassan & others- 1, MLR (1996) (AD) 366.
Section 561 A
Quashment of proceedings—
Quashment of proceedings on ground of civil suit on same fact is not permissible in law. Both the civil suit and criminal case can stand together. Khondaker Mahtabuddin Ahmed and others Vs. The State— 1, MLR (1996) (AD) 411.
Section 561 A
Quashment of proceedings— Not permissible-When both cases are permissible—
When allegations constituting offence under section 406 and 420 of the Penal Code are there, the proceeding of the court of Metropolitan Magistrate cannot be quashed on the plea that the offence being one under section 23 of the Immigration Ordinance, 1982 is exclusively triable by the special court. The complainant can also initiate prosecution against the accused under the Immigration Ordinance as well. Naziur Rahman Vs. The State— 1, MLR (1996) (AD) 446.
Section 561 A
Quashment of Proceedings— after the dispute decided by the Sessions Judge in revision- Not permissible-
An application under section 561A Cr. P.C. for quashment of proceedings after Ike propriety of the order of the Magistrate has been decided by the Sessions -Judge in revisional jurisdiction, is not maintainable. Although Customs Authority can proceed departmentally for realising customs duties on imported goods, but it can not seek to seize the goods in a criminal proceedings instituted by private parties. M. A. Mottalib Vs. Narayan Kumar Agarwala—2, MLR (1997) (AD) 251.
Section 561 A
Quashment of Criminal Proceedings— Not permissible when loanee and gaurantor are jointly prosecuted for fraud and collusion—
When mortgaged property is removed or sold collusively in breach of the trust with a view to defrauding the loan giving Bank, proceeding under section 406/420/418 of the Penal Code are competent both against the loanee and the guarantor and as such the said proceedings cannot be quashed. Ansor Ali (Md) Vs. Manager, Sonali Bank— 2, MLR(1997) (AD) 253.
Section 561 A
Quashment of proceeding- Civil and criminal proceedings on contractual dispute—
The criminal proceedings as well as the civil proceedings cannot lie simultaneously in respect of the same dispute arising out of contractual work and a criminal proceedings in such case being abuse of the process of law are liable to be quashed. Ansarul Hoque Vs. Abdur Rahman & 4 others— 2, MLR(1997) (AD) 125.
Section 561 A
Quashment of proceedings—Allegations being preposterous and abuse of the process of court—
When the allegations are preposterous, the proceedings are abuse of the process of the court, and are opposed to law, and the allegations do not constitute an offence or there is no proof or evidence in support of the charge, such proceedings can well be quashed under section 561A and not otherwise. Ali Akkas Vs. Enayet Hossain and others—2, MLR(1997) (AD) 166.
Section 561 A
Quashment of proceeding— Where not tenable— Prevention of Corruption Act, 1947— Section 5(2)— Offence of Criminal misconduct triable by Special Judge—
Penal Code I860— Section 21— Public servant— Bank Companies Act, 1991— Section 110— Managers and officers of Bank where the Government have share holding interest are public servants—
Manager of the IFIC Bank Ltd. in which the Government have 40% share is a public servant within the meaning of section 21 of the Penal Code, 1860 as amended by Act No. 10 of 1982 read with section 110 of the Bank Companies Act, 1991 and as such the offence committed by him under section 5(2) of the Prevention of Corruption Act, 1947 and section 409, 477A and 462(a) of the Penal Code are triable by the Special Judge and the proceedings thereof cannot be quashed under section 561A of the Code of. Criminal Procedure, 1898. International Finance Investment and Commerce Bank Ltd Vs. Abdul Quayum & another— 4, MLR (1999) (AD) 340.
Section 561-A
The Code of Criminal Procedure, 1898
Section 561-A
The Special Powers Act 1974
Section 25B
Criminal proceeding quash– It is settled principle that a criminal proceeding can not be quashed on the basis of defence materials which are still not part of the materials for the prosecution– It is well settled that a criminal proceeding is liable to be quashed only if the facts alleged in first information report or complaint petition even if admitted, do not constitute any criminal offence, or the proceeding is otherwise barred by any law. .....Ruhul Amin(Md.) =VS= The State, (Criminal), 2022(1) [12 LM (AD) 391]
Section 561A
The Code of Criminal Procedure, 1898
Section 561A
The Anti-Corruption Commission Act, 2004
Section 26(2), 27(1) r/w
The Penal Code, 1860
Section 109
The Emergency Power Rules, 2007
Section 15(D)(5)
Appellate Division is of the view that the petitioner was a fugitive in the eye of law when she filed the application under section 561A of the Code of Criminal Procedure. Direction of the High Court Division in the concluding portion of the impugned judgment and order that: “However, since at the time of issuing the Rule this Court dispensed with the appearance of the petitioner, she should be allowed to appear before the concerned Court without any hindrance. The petitioner is directed to appear before the concerned Court within 08(eight) weeks from the date of taking cognizance of the offence, if any so that she can defend herself in accordance with law.” -is outside the purview of law and hence struck off. Thus the impugned judgment and order is modified with the above observation. Accordingly, the criminal petition for leave to appeal is dismissed. .....Dr. Zubaida Rahman, wife of Tarique Rahman =VS= The State, (Criminal), 2022(1) [12 LM (AD) 523]
Section 561A
Secure justice– The provision of the section 561A of the Code only provides following jurisdiction upon the High Court Division which can be exercised by it to achieve purposes mentioned herein, namely,
(a) to give effect to any order under the Code or
(b) to prevent the abuse of the process of any Court or
(c) to secure the ends of justice.
The powers vested under this section are extra-ordinary in nature which are required to be exercised with a view to secure justice. ...Khalilur Rahman=VS= Md. Alauddin Akon(Bir Muktijoddha), (Criminal), 2020 [9 LM (AD) 543]
Section 561A
Code of Criminal Procedure, 1898
Section 561A read with
Constitution of Bangladesh, 1972
Article 102(2)
Extra ordinary power– It is an extra-ordinary power it should be exercised sparingly, that, is to say, in rarest of the rare cases. So, the High Court Division should guard while exercising this power that the principles are applied in the facts of the case. This Division has given guidelines while exercising the extra-ordinary powers in Abdul Quader Chowdhury vs State, 28 DLR (AD) 38 and those guidelines have been reiterated in subsequent cases in Bangladesh vs Tankhang Hock, 31 DLR (AD) 69; Ali Akkas vs Anayet Hossain, 17 BLD (AD) 44 = 2 BLC (AD) 16.
The High Court Division cannot exercise its extra-ordinary powers unless the applicant has accompanied a copy of the FIR, the police report and the order taking cognizance of the offence by the competent court if he comes out with a case that the allegations do not constitute any offence, and if the applicant challenges his conviction on the ground that the conviction is based on no legal evidence, he is required to accompany a copy of the judgment along with the petition for satisfying the High Court Division that the conviction is based no legal evidence. Apart from that there is no scope on the part of the High Court Division to exercise its extra ordinary powers. ...Anti-Corruption Commission =VS= Shahjahan Omar(Md), (Criminal), 2020 [9 LM (AD) 281]
Section 561A
Section 561A has only reiterated the Courts inherent power to give effect to any order under the Code of Criminal Procedure to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The fact that the accused were tried and found guilty and then unsuccessfully filed an appeal and a revisional application can not be a ground for refusing to exercise the Courts power under section 561A Cr.P.C. Mofazzal Hossain Mollah and others Vs. The State, 13 BLD (AD) 207
Section 561A
In view of the complainants case that he delivered the jute in good faith on the accused’s inducement of part-payment and a specific promise to pay the balance price within three days, but subsequently he betrayed, it cannot be said that there was no prima facie case against the accused. The High Court Division rightly refused to quash the proceeding. Md. Arifur Rahnzan alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD (AD) 78
Section 561A
The High Court Division exercises its inherent power under section 561A independent of any other powers. Although the High Court Division cannot entertain any application under section 439 (1) from a decision of the Sessions Judge under section 439A, still in a fit case, it can interfere with the Sessions Judge’s order by invoking its inherent power. This inherent jurisdiction is available even to a party who has lost in revision before the Sessions Judge.
Section 561A Cr.P.C. is neither an additional power nor an alternative power of the Court and this power is to be exercised very sparingly only in appropriate cases within the bounds of the provisions of this section. While section 439 confers revisional power, section 561A reiterates the inherent power of the Court Md. Sher Ali and others vs The State and another, 14 BLD (AD) 84
Section 561A
The evidence on record having been properly assessed by the Trial Court and independently reassessed by the Appellate Court and both the Courts found it reliable, no case of interference is made for the Court of Revision or the High Court Division acting u/s 561A Cr.P.C. Abdul Khaleque and others Vs. State and another 14 BLD (AD) 131
Section 561A
Once it is found that there is a prima facie case for going to the trial, a criminal proceeding cannot be quashed on the ground of any defect in the charge framed. Hussain Mohammad Ershad Vs. The State, 14 BLD (AD) 161
Section 561A
In a proceeding under Section 561A Cr.P.C. the High Court Division cannot embark upon an enquiry to ascertain the truth or otherwise of the prosecution case or of facts which are not in the prosecution case. When a prima facie case is disclosed, there is no legal impediment for the proceeding to continue. Hussain Mohaininad Ershad, former President Vs. The State, 14 BLD (AD) 178
Section 561A
Even though a Minister is found to be personally interested in a criminal case against the accused-appellant, yet this by itself is not sufficient to conclude that the specific allegations against the appellant are false. The High Court Division was right in holding that the question of malafidies could be determined only on taking evidence at the trial and was justified in refusing to quash the proceeding. Engineer Afsaruddin Ahmed Vs. State, 14 BLD (AD) 206
Section 561A
The Code of Criminal Procedure, 1898
Section 561A
The Court cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting the society and the mankind–
Applications invoking section 561A of the Code should not be so readily entertained, especially when the end result would be to delay and defeat the ends of justice. In the instant case there are specific allegations against the accused. Delaying the trial, particularly on technical ground, results in the erosion of public confidence in the justice delivery system. We do not find any infirmity or illegality in the judgement of the High Court Division calling for any interference by this Division, hence, the criminal petition for leave to appeal is dismissed. …Solim Ullah(Md.) =VS= Deputy Commissioner (DC), Chattogram, (Criminal), 2019 (2) [7 LM (AD) 285]
Section 561A
In view of the confessional statements and the statements of witnesses recorded under section 161 Cr.P.C. it cannot be said that this is a case of no evidence justifying the quashing of the proceeding. Evidence led at the trial to substantiate the allegations can be scrutinised only at the trial. Nasim Bin Rahman Vs. The State, 14 BLD (AD) 217
Section 561A
The Penal Code, 1860
Sections 468/471/409/120
The Prevention of Corruption Act
Section 5
Code of Criminal Procedure, 1898
Section 561A
The petitioner did not misappropriate even a single piece of those CI sheets, so, filing of the instant case was malafide, preposturous and had been brought only to harass the appellant which is liable to be quashed–– From the contents of the FIR and statements quoted above it appears that 36 pieces of CI sheets were recovered from the Madrasha. Out those CI sheets, 19 pieces were recovered removing those from the constructed roof of the tin shed of Madrasha and rests were seized from inside the Madrasha. Earlier those were sanctioned for Madrasha on the basis of the application made by the authority of the Madrasha. That is, no CI sheet was recovered from the custody and control of the appellant. Only allegation is that the appellant, keeping those CI sheets in his custody for few days, delivered those sheets to the Madrasha authority. ––That is, admittedly, he did not misappropriate those CI sheets and those were not recovered from his custody and control. That was a trivial matter that has been given undue importance. Moreover, in the meantime 14 years has elapsed. After 14 years, it will not be appreciatable for a ordinary prudent and senseable man to allow the instant case to proceed with. Taking into consideration the facts and circumstances of the case, the FIR and other prosecution papers taken in pursuance thereof, would be an abuse of the process of Court. Thus, the appeal is allowed. The instant GR Case is dropped. .....Abu Taher (Md) =VS= State, (Criminal), 2023(1) [14 LM (AD) 297]
Section 561A
Although quashing of a criminal proceeding at the stage of submission of charge sheet is not and should, not generally be permitted, particularly when it discloses commission of offences, yet under special circumstances quashing of a proceeding at this stage is permissible in the interest of justice. Afia Khatoon Vs. Mobasswir Ali and others, 14 BLD (AD) 251
Section 561A
When an earlier proceeding instituted by the petitioners husband alleging offences of forgery was dismissed by the Magistrate on the finding that the dispute was one of a civil nature, a second proceeding on the same facts and allegations by the present complainant amounts to an abuse of the process of the Court. No person can initiate a second proceeding nor a Magistrate can take cognizance of any offence alleged to have been committed in respect of the same transaction which has already been decided in a previous proceeding. Such a proceeding is clearly vexatious and it amounts to misuse of the provision of law. Dil Afrose Vs. Md. Mostamsher Billah alias M. S. Billah and others, 15 BLD (AD) 3
Section 561 A read with
Special Powers Act [XIV of 1974]
Section 25A -Mere physical posses- sion of the counterfeit notes is not an of- fence punishable under section 25A of the Special Powers Act.
The Appellate Division held that but the intention as it transpires from the F.I.R., facts, circumstances on record and the other evidence it has become clear to Ap- pellate Division that this criminal pro- ceeding cannot be quashed at this stage of hearing because it needs evidence to be recorded by the court during the course of trial to establish the intention of keeping huge quantity of counterfeit note in the apartment and accordingly this petition for leave to appeal is dismissed. Abdul Walled Gaffar Vs. The State and another. (Criminal) 11 ALR (AD) 133-134
Section 561A read with
Negotiable Instruments Act [XXVI of 1881]
Section 138 read with Penal Code [XLV of 1860]
Section 420-The ingredients of sec- tion 138(1) of the Negotiable Instruments Act were not present in the case. The High Court Division observed that the account on which the cheque was drawn was not maintained in the name of the accused-petitioner, rather it was main- tained in the name of her husband and that the cheque was not bounced because of insufficiency of fund.
The Appellate Division held that the High Court Division observed also that the facts and circumstances of the case prima facie showed that there were ingredients of cheating against both the accused-petitioner and her husband and that in view of the matter the complainant may initiate a criminal proceeding against them under section 420 of the Penal Code and may also go to the civil court to recover his loan amount of Tk. 30 lac by filing a money suit against the accused and her husband. Ap- pellate Division finds no reason to interfere with the above findings and decision of the High Court Division. Al-haj Abdun Nabi Ledu @ Abdun Nabi -Vs.- Shahnaj Begum Sumi Begum and another (Criminal) 10 ALR (AD) 267-268
Sections 561A read with
Negotiable Instruments Act [XXVI of 1881]
Section 138-Whether the High Court Division in exercising its inherent power under section 561A of the Code can award cost to any of the party of the proceedings, particularly, the accused while discharging the Rule issued for quashing a criminal proceeding or not.
The Appellate Division held that there is nothing to authorize the High Court Divi- sion or any criminal Court to award costs in a criminal case against the accused or the informant/complainant as the case may be. Khondker Latifur Rahman Vs. The State, represented by the Deputy Com- missioner, Chittagong and another (Criminal) 12 ALR (AD) 6-11
