Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Code of Criminal Procedure, 1898 (Cr.PC) (BD)
Section/Order/Article/Rule/Regulation Head Note
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. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

Section 4(1)(q)

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

Section 4 (l)(m) —

"Judicial procee ings include any proceeding in the cour 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 Chowdhu 1 BLD (AD) 314 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Sections 5(2) & 339D

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

Section 5(2)

The Code of Criminal Procedure, 1898
Section 5(2) read with
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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

Sections 9(3), 29C, 31(4), 409

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

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. ....View Full Judgment

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. ....View Full Judgment

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, 15BLD(AD)l08 ....View Full Judgment

Section 31

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

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. Ahul Kashem 5 BLD (AD) 166 ....View Full Judgment

Section 35(d)

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

Sections 35A & 401

The Code of Criminal Procedure, 1898
Sections 35A & 401 read with
Penal Code, 1860
Sections 53 & 54
It cannot be applicable in respect of an offence which is punishable with death–
Section 35A of the Code of Criminal Procedure is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discretionary power of the court. It cannot be applicable in respect of an offence which is punishable with death. Though the word 'only' is used in section 35A, the legislature without considering section 401 of the Code of Criminal Procedure and section 53 of the Penal Code has inserted the word `only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the government only. .....Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

Sections 94 and 160

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

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. ....View Full Judgment

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 AntiCorruption, 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.
Messrs Hamidia Oil Mills Vs. District Anti Corruption Officer, Chittagong, 16BLD (AD)220 ....View Full Judgment

Section 96

The submission that by search and seizure no fundamental right of the petitioner is violated is misconceived on the facts of the instant case. Government of Bangladesh vs Husssain Mohammad Ershad 52 DLR (AD) 162. ....View Full Judgment

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. ....View Full Judgment

Section 99A(1)(c)

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

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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, 15BLD(AD) 117 ....View Full Judgment

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. ....View Full Judgment

Section 145

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

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. ....View Full Judgment

Sections 145, 439A and 561A

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

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. ....View Full Judgment

Sections 145 and 146

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

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. ....View Full Judgment

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. ....View Full Judgment

Sections 145 and 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. ....View Full Judgment

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. ....View Full Judgment

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 14BLD(AD)246 ....View Full Judgment

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] ....View Full Judgment

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, 15BLD(AD)157 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 154

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

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. ....View Full Judgment

Sections 154 & 161

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

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Sections 161 and 162

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

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. ....View Full Judgment

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] ....View Full Judgment

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 thcacused 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. ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Sections 164 & 342

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

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. ....View Full Judgment

Section 164(2)

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

Section 164(3)

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

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. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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 beleive 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. ....View Full Judgment

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. ....View Full Judgment

Sections 167 and 173

Chargeshet validity of— The police validly submitted the chargesheet 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. ....View Full Judgment

Section 167

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

Sections 167 & 173

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

Section 167(7)

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

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. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

Sections 167(1)/(2) & 54

The Code of Criminal Procedure, 1898
Sections 167(1)/(2) & 54 read with
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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

Section 172

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

Section-172

The Code of Criminal Procedure, 1898
Section-172 read with
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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

Sections 173 & 439A

So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction.
Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this Court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the ambit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.
It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time honored and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of justice and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path.
Per Latifur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh. Sher Ali vs Stale 46DLR (AD) 67. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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, "........ ïaygvÎ `iLv¯ÍKvix Avmvgx wb‡Ri bv‡g AwR©Z ¯’vei I A¯’vei m¤ú` we‡ePbv wbwg‡Ë c~btZ`‡šÍ †cÖi‡bi Av‡`k `v‡b Avcbvi GKvšÍ gwR© nq|" We do not find any provision in the law for holding c~btZ`šÍ 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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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 6BLT (AD)-144 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Sections 190, 195 and 196—198

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

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] ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Sections 195 & 476

When a fraudulent document is not produced in a proceeding before Court private complaint is not barred.
It is absolutely clear that unless the document is filed in Court, the Court cannot make a complaint. In the present case in view of the positive finding of the High Court Division and on the failure of the learned Advocate to show before us that, in fact, the allegedly fraudulent document was produced in Cr Case No.116 of 1983, the private complaint at the instance of the informant is not barred. Shamsuddin Ahmed Chowdhury vs State 49 DLR (AD) 159. ....View Full Judgment

Section 195(1)(b)

Proceeding in Court—In view of the decision that a Magistrate acts his judicial capacity while discharging an accused on the basis of a final report by the Police and the reason ings in the majority judgment in 1979 AIR (SC) 777, the offence under section 211 Penal Code was committed in relation to a proceeding in Court and, as such, the bar under section 195(1 )(b) is attracted. Seraj uddowla vs Abdul Kader 45 DLR (AD) 101. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 195 (1)(c)

The Code of Criminal Procedure, 1898
Section 195 (1)(c) read with
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] ....View Full Judgment

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 ....View Full Judgment

Section 197

The evidence of the witness including the report of the inquiry held by a Magistrate leads to irresistible opinion that the offence alleged has not been committed by the accused in the discharge of their official duties and, as such, we do not find any force in the submission of the learned Advocate as to applicability of section 197 of the Code regarding the two petitioners. ASI Md Ayub All Sardar vs State 58 DLR (AD) 13. ....View Full Judgment

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 ....View Full Judgment

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 ....View Full Judgment

Sections 200, 202, 204 and 205C

Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 evi-;nce a prima facie case is made out he ill issue process Bangladesh Vs. Yakub irdar and others 8 BLD (AD) 180 ....View Full Judgment

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. ....View Full Judgment

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 complaint under section 203 CrPC the informant respondent’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. ....View Full Judgment

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. ....View Full Judgment

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 Metropolitan 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 subsection (3) of section 204 CrPC. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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 ....View Full Judgment

Section 227

read with
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 ....View Full Judgment

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, 14BLD(AD)161 ....View Full Judgment

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 ....View Full Judgment

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] ....View Full Judgment

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 ....View Full Judgment

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 consequence 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. ....View Full Judgment

Section-233 read with 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 ....View Full Judgment

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. ....View Full Judgment

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 “unauthorised possession of fire arms” are not offences of the same nature contemplated in sections 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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 237

read with
Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]
Section 11(Kha) - Conviction even without framing charge on a particular count. The accused may be convicted of the offence which was proved against him although no charge was framed.
Ingredients of section 11(a) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 are very much present in this case against the appellant-petitioner and in view of the provision of section 237 of the Code of Criminal Procedure he may be convicted of the offence which was proved against him although no charge was framed under section 11(a) as the same offences are of cognate nature. Conviction of the appellant-petitioner under section 11(a) was rightly found to be in accordance with law.
Md. Harun-ur-Rashid -Vs.- TheState 3ALR(2014)(1)(AD) 104 ....View Full Judgment

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 offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman vs State 51 DLR (AD) 33. ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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 (A D) 277. ....View Full Judgment

Sections 239 & 537

Sameness of transaction—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. ....View Full Judgment

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 ....View Full Judgment

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 sustainable as it was based on gross misconception of law. Nannu Gazi vs Awlad Hossain 43 DLR (AD) 63. ....View Full Judgment

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 application 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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 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 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 Division 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, Narayangonj (South).
Md. Habib Jamal-Vs.- The State (Criminal) 13 ALR (AD) 111-130 ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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, ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 247 read with 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] ....View Full Judgment

Sections 249, 339C(4) & 403

Fresh proceeding 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. ....View Full Judgment

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 13BLD(AD)11 ....View Full Judgment

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 ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

Section 339C

”Working days” for disposal of criminal cases—stopping proceedings for release of the accused—”Working lays” of the Court—”Working days” shall bç 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 s 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 proceedings rightly rejected. Abul Kashem vs State 40 DLR (AD) 97. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 Chowdhwy Vs. The State—4, MLR (1999) (AD) 221. ....View Full Judgment

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] ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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 circumstance appearing in the case against him while he was examined under section 342 CrPC. Mizazul Islam vs State 41 DLR (AD) 157. ....View Full Judgment

Section 342

Sending back the case on remand for fresh trial from the stage of the examination 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. ....View Full Judgment

Section 342

Examination of accused - Statement of accused-Mot to be used against accused—
The purpose of examination of an accused under section 342 of the Code of Criminal Procedure is to provide an opportunity to an accused to explain his conduct and circumstance in relation to the evidence adduced by the prosecution which is only for the benefit of the accused. Such statement cannot be used against the accused by the court nor this can be used by the prosecution to fill up any gap in its case.
Shah Alam Vs. State 42 DLR (AD) 31. ....View Full Judgment

Section 342

Omission, to examine an accused under section 342 Cr.P.C.— Legal effect of—­Examination of accused by Court under section 432 of the Code of Criminal Procedure is a mandatory requirement of law. Omission to examine an accused u/s 342 is a fatal defect which is not curable under section 537 Cr.P.C. Therefore the conviction and sentence passed in such trial is not sustainable in law. The appropriate course is to set aside the conviction and sentence and send the case for examination of the accused with direction to proceed on to dispose of the case by writing a fresh judgment in accordance with law.
Abdul Gqfur Vs. Jogesh Chandra Roy, 43 DLR (AD) 62. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 344

Power to postpone proceedings—Applicability of such power to postpone judgment in a criminal case pending disposal of a civil suit—The application under section 344 CrPC had been moved at a belated stage after the evidence was closed and the trial came to an end. Only because the judgment remains to be delivered, the application does not appear to be one as contemplated under section 344. In fact the petitioner knew of this and prayed for adjournment of the judgment, not of the trial. The application at this stage does not appear to be maintainable. HM Ershad vs State 44 DLR 116. ....View Full Judgment

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. ....View Full Judgment

Section 344 and 561A

Stay of proceedings in view of pending civil suit-Where a suit with respect to certain disputed documents has been instituted before lodging of FIR on the allegations of forgery of the same where the civil court has yet to examine the original documents, the proceedings of the subsequent criminal case may be stayed till the disposal of the suit.
Zakir Hos sain and others Vs. The State - 43 DLR (AD) 102. ....View Full Judgment

Section 349A

Sessions Judge acted illegally in deciding the case upon the evidence recorded by the Special Martial law Court. This was the precise argument made on behalf of the respondents in the High Court Division which should have been upheld but the High Court Division misdirected itself in relying upon paragraph 4 of the Proclamation of Withdrawal of Martial Law dated 10-11-86. Although the reason was wrong but its conclusion was right that the order of conviction and sentence was illegal and without jurisdiction. Martial Law Court. State vs Golam Mostafa 49 DLR (AD) 32. ....View Full Judgment

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 exmination after framing charge.
The State Vs. Colam Mostaja and others— 1, MLR (1996) (AD) 320. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 367 (5)

The Code of Criminal Procedure, 1898
Section 367 (5) read with
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] ....View Full Judgment

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. ....View Full Judgment

Section 374

The murder was not committed 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. Zahiruddin vs State 47 DLR (AD) 92. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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 circumstances. Nor did we. Abdul Quddus vs State 43 DLR (AD) 234, ....View Full Judgment

Section 376

Death sentence, commutation of—Death sentence not executed after more than four years from the date of confinnation 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. ....View Full Judgment

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 significant. 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 can not be said that Judges are equally divided in respect of the accused charged with. Major Bazlul Huda vs State 62 DLR (AD) 1. ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

Section 409

An Assistant Sessions iu1e deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, eg for hearing appeals, revisions, references and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abdul Kashem vs State 43 DLR (AD) 77. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 417(3)

The special limitation provided in sub-section (3) of section 417 CrPC is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed in a case upon a petition of complaint. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198. ....View Full Judgment

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. ....View Full Judgment

Section 417 and 423

Conversion of finding of acquittal into one of conviction- when permissible—
The correct position of law is that the finding of acquittal can be converted into conviction only in an
appeal under section 417 of the Code of Criminal Procedure.
Mofizuddin Vs. State- 40 DLR (AD) 286. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

Section 423

When it is found after a full trial that there was a mis-trial or trial without jurisdiction, the Court of appeal before directing a fresh trial by an appropriate Court should also see whether such direction should at all be given in the facts and circumstances of a particular case.
If it is found that there was no legal evidence to support the conviction then in that case it would be wholly wrong to direct a retrial because it would then be an useless exercise. Further, the prosecution should not be given a chance to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial. Asiman Begum vs State, represented by the Depuly Commissioner 51 DLR (AD) 18. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

Section 426

Bail—Condition for the bail is quite reasonable and can be complied with by the person seeking bail without any difficulty but payment of fine involving huge amount of money as a condition for bail may not be possible— Impugned order of payment of fine as a condition for the bail is not supportable either in law or on the principle of reasonableness. Iqbal vs State 41 DLR (AD) 111. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Sections 435, 438 & 439A

When the SEC was making a complaint of fraudulent acts against certain companies and their directors on the basis of an enquiry undertaken by an expert committee, a Court would be well-advised not to try to be more expert at the complaint stage because otherwise it will be an example of nipping the prosecution in the bud. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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.
Shahidur Rahman Khadem-Vs-The State and others 6 ALR (AD) 2015 (2)218 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 439

Direction for filing a separate application for bail while moving a revisional application whether proper—When the appellants were already on bail granted by the lower Appellate Court, the direction that has been given after rejecting the prayer for bail is not proper and is not in keeping with the normal practice and; procedure that is traditionally followed in the High Court Division in revision. In that view o the matter, the appellants will remain on bail already granted, till disposal of the revision case. Baneanzuddin Ahmed vs State 43 DLR (AD) 12 ....View Full Judgment

Section 439

The High Court Division may also suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice. Reazuddin Ahmed vs State 49 DLR (AD) 64. ....View Full Judgment

Sections 439, 439A & 561A

Propriety of exercising jurisdiction under section 561A CrPC to quash Magistrate’s order drawing up proceeding under section 145 CrPC—As the High Court Division’s revisional jurisdiction is concurrent with that of the Sessions Judge and although the High Court Division could decline to interfere for not moving the Sessions Judge, the interference that has been made cannot be said to be without jurisdiction. Jurisdiction under section 561A CrPC is not ousted in the presence of the revisional jurisdiction of the Sessions Judge under section 439A of the Code. The only question will be, has any case been made out either under section 439 or 561A of the Code? The answer will vary from case to case. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175. ....View Full Judgment

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. ....View Full Judgment

Sections 439(4), 439A & 561A

The Sessions Judge’s decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. He is free to go to any appropriate forum to challenge the Sessions Judge’s decision. But he cannot go to the High Court Division with another revisional application, as such, an application—better known as second revision—is expressly barred by section 439.
Though the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still it can interfere with the Sessions Judge’s order by invoking its inherent for the limited purposes as set out in that, section namely, ‘to give effect to any order under Code, or to prevent abuse of the process of any court or otherwise to secure ends of justice’. Sher Ali vs State 46 DLR (AD) 67. ....View Full Judgment

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 Chowdhunj— 1. MLR (1996) (AD) 410. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 439

Fresh bail petition not necessary while filing Revisional application—
When the petitioners were already on bail granted by the appellate court it is not necessary that while moving revisional application they should file separate application for bail. Direction given by High Court Division for filing separate application for bail upon rejectio i of the prayer for bail is not proper and is not in keeping with the normal practice and procedure traditionally followed by the High Court Division in revision. The Appellate Division in such a case directed the appellants' to be on bail since granted by the appellate court below till disposal of the revision case.
Baneazuddin Ahmed Vs. The State-43 DLR (AD) 120. ....View Full Judgment

Section 439A and 561 A

Inherent power of the Court not circumscribed by the revisional power—
Inherent power of the High Court Division under section 561A Cr.P.C. is extra-ordinary power which should be very sparingly exercised for securing the ends of justice in appropriate case covered by the provisions of the section itself. Inherent jurisdiction of High Court Division can well be invoked by a party who had lost in revision before the Sessions Judge in a fit case.
Amiml Islam Vs. Mujibar Rahman-45 DLR (AD) 9. ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

Section 476

Rule issued by the High Court Division on the appellants and two advocates to show cause why complaint should not be lodged against them under section 476 CrPC was m1e absolute against the appellants who then appealed. High Court Division issued a suo motu Rule in Criminal Revision No. 43 of 1986, upon the appellants and two Advocates to show cause as to why a complaint should not be lodged against them under section 476 of the Code of Criminal Procedure as they appeared to have practised fraud upon the Court by filing a false petition of compromise. The Rule against the appellants was made absolute, but it was discharged against the two Advocates. Hence this appeal. Abdul Gafur vs State 41 DLR (AD) 127. ....View Full Judgment

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. ....View Full Judgment

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 thd appellate court amounts to acting beyond jurisdiction.
Khizir Hayat Khan Eusuf Zai Vs. Maja (Rtd.)Md. Muqtadir Ali & Ors 7 BLT(AD)-252 ....View Full Judgment

Section 476 Read with Section-195(1) (b) (c)

Both section 195 and 476 of the Code of Criminal Procedure clearly speak of production of a document in a proceeding before a court, Section 195 (2) speaks of civil, revenue or Criminal Court and Section 476 of the Code speaks of an enquiry into any offence referred to section 195 sub section (1) clauses (b) and (c) when offence appears to have been committed relation to a proceeding in that Court. Thus it is absolutely clear that unless document is filed in Court, the Court can make a complaint.
Shamsuddin Ahmed Chowdhury Vs. The State & Anr. 5BLT (AD)- ....View Full Judgment

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] ....View Full Judgment

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 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, represented by the Deputy Commissioner, Chittagong and another (Criminal) 12 ALR (AD) 6-11 ....View Full Judgment

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 Moneycm Chowdhury Vs. Md Shamsul Hussain Chowdhury 6 BLD (AD) 128. ....View Full Judgment

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 and fine passed against the appellant.
The Appellate Division is inclined to take a lenient view. Hence the order of censure and fine of Tk. 10/- passed against this appellant 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 ....View Full Judgment

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. ....View Full Judgment

Section 491

Having considered all aspects of the matter it will be in the best interest of the girl if she is released from custody and given to the care of her father. it is also necessary to see that the accused does not feel prejudiced at the trial because of the girl remaining under the care of the informant. The accused will be at liberty to pray before the trial Court for her production in Court if it is found necessary. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 Anwar a Bewa Vs. Razz.ak and others 5 BLD (AD) 327.Ref. 30 DLR (SC) 297; 35 DLR (AD) 329. ....View Full Judgment

Section 494

The trial Court having not accorded sanction for withdrawal of the case it cannot be said that the petitioners have acquired a vested right. Further, section 494 of the Code gives the authority only to a public prosecutor to file an application for withdrawal and, as such, the accused have no right to file an application for withdrawal. Apart from this the Tribunal after recording proper reasons have refused to accord consent for withdrawal of the case and, as such, no lawful grievance can be made on the merit as well. Abdul Khaleque vs Md Hanf 49 DLR (AD) 134. ....View Full Judgment

Section 494

The consent mentioned in section 494 of the Code is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. Sreemati Prativa Rani Dey (tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8. ....View Full Judgment

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. ....View Full Judgment

Section 497(1), read with 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] ....View Full Judgment

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. ....View Full Judgment

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 abscon-dence 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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 498

The Code of Criminal Procedure, 1898
Section 498 read with
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] ....View Full Judgment

Section 498

The Code of Criminal Procedure, 1898
Section 498 read with
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] ....View Full Judgment

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] ....View Full Judgment

Section 498

The Code of Criminal Procedure, 1898
Section 498 read with
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] ....View Full Judgment

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] ....View Full Judgment

Bail

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] ....View Full Judgment

Section 498

Anticipatory bail — From the facts stated in the petition and the circumstances metioned 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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. Wahah Advocate Vs. The State 10 BLD (AD) 50. ....View Full Judgment

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. ....View Full Judgment

Section 498

Considering the statements under section 161 of the Code of Criminal Procedure wherein no specific overt act involving the appellants with the killing of the victim is found the appellants are granted bail and if the trial starts the Sessions Judge will be free to take them into custody during trial. Abdul Matin vs State 44 DLR (AD) 8. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 498

Bail in a case where the sentence is of short duration—In the present case the - sentence is of two years and the disposal of the appeal in question normally takes time. In that circumstances the High Court Division ought to have exercised judicial discretion in the matter of granting bail to the appellants. The judicial discretion having not been properly exercised in the facts of the case the order is set aside and the appeal allowed. Dhanu Mia vs State 43 DLR (AD) 119. ....View Full Judgment

Section 498

High Court Division criminal revision cancelled the appellant’s when there was no new material before it and no allegation of tampering with the evidence. Co-accused against whom cognizance of a murder case has already been taken is already on bail. High Court Division did not exercise its judicial discretion properly in cancelling the appellant’s bail—Appellants to remain on bail already granted by Upazila Magistrate. Bakul Howlader vs State 43 DLR (AD) 14. ....View Full Judgment

Section 498

Bail—When there is hardly any chance of abscondance of the appellant in the peculiar circumstances, the Court has found that he is entitled to bail—Appeal allowed. We need not consider the appellant’s contentions with regard to the order of conviction. In the peculiar circumstances of the case we think the appeallant is entitled to bail particularly where there is hardly any chance of abscondance. The respondent found it difficult to oppose the appellant’s prayer. SM Shajahan Ali Tara vs State 41 DLR (AD) 112. ....View Full Judgment

Section 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. ....View Full Judgment

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. ....View Full Judgment

Section 498

Bail matter—High Court Division admitted a criminal appeal but rejected the prayer for bail pending disposal of the appeal—Ad interim bail granted by tle Appellate Division at leave stage for two months cannot be allowed to continue indefinitely—ad-interim bail extended for six months more and meanwhile parties are directed to make sincere effoils for disposal of the appeals—on expiry of the extended period, prayer for bail is to be moved before the High Court Division. Azizul Hoq vs State 42 DLR (AD) 284. ....View Full Judgment

Section 498

The law permits granting of bail even in a case where there are such reasonable ground for refusing bail, in the case of any woman or any sick or infirm person.
However, the respondent has not been granted bail upon these considerations but upon the view that there are no reasonable grounds for believing that she has been guilty of the offence alleged. The learned Attorney-General could not refer to any principle which has been allegedly violated by the High Court Division nor to any fact which has either been ignored or wrongly relied upon. State vs Jobaida Rashid 49 DLR (AD) 119. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 Chowdhunj- 4, MLR (1999) (AD) 291. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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, 13BLD(AD)121 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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, 19BLD (AD)260 ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

Section 526

Even if the case of the accused is accepted that the Public Prosecutor rebuked him and made comment while Pw.1 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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 526

The contention that the transfer of the case from Munshiganj to Dhaka for trial will tend to the general convenience of the parties as most of the witnesses hail from Dh has substance. Roquib Mohammad Fakrul alias Rocky vs Md Abdul Kashem 56 DLR (AD) 191. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. Mqfdzztriur Raluunn Vs. Ahdus Salam and others 1 BLD (AD) 213. ....View Full Judgment

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 ....View Full Judgment

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 Ahedin and others Vs. The State 5 BLD (AD) 257. ....View Full Judgment

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. ....View Full Judgment

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, ....View Full Judgment

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 ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

Section 540

There is absolutely no material to show that accused Ramizuddin had any knowledge about the proceeding ever since it was started against him, as at all material times he was abroad. In that view the discretion exercised by the Additional Sessions Judge allowing the accuser’s application for cross-examination of PWs affirmed by the High Court Division calls for no interference. Nimar Ali vs Ramizuddin 50 DLR (AD) 162. ....View Full Judgment

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] ....View Full Judgment

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, 14BLD(AD)9 ....View Full Judgment

Section 549

Since the appellants were not on active service within the meaning of section 8(1) of the Army Act, 1952 the appellants cannot be tried under the Army Act and, as such, there was no offence of mutiny leading to murder in the facts of the instant case. Even if one were to accept for the sake of argument that offences committed were civil offences within the meaning of section 8(2) read with section 59(2) of the Army Act, there is no legal bar in trying those accused persons in the Sessions Court in compliance with the provisions of section 94 of the Army Act read with section 549 of the CrPC. There is no legal bar for trial of the appellants in the Criminal Court in the relevant case, inasmuch as, the offences committed are in the nature of murder simpler. (Per Md Muzammel Hossain J) Major Bazlul Huda vs State 62 DLR (AD) 1. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

Section 561A

The Code of Criminal Procedure, 1898
Section 561A read with
The Penal Code
Sections 409/109 read with
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] ....View Full Judgment

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] ....View Full Judgment

Section 561A

The Code of Criminal Procedure, 1898
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 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] ....View Full Judgment

Section 561A

The Code of Criminal Procedure, 1898
Section 561A 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 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] ....View Full Judgment

Section 561A

The Code of Criminal Procedure, 1898
Section 561A read with
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] ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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] ....View Full Judgment

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. ....View Full Judgment

Section 561A

When a prosecution arises out of ill-motive or improper motive the machinery 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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 561A

The fact that the accused were tried and found guilty and then unsuccessfully 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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

Section 561A

Quashing of proceedings for alleged breach of trust and cheating: Money claims, not the outcome of a particular transaction but arose after year-end accounting following regular business between the parties. If on settlement of accounts at the end of a period some money falls due to one party from the other party and the other party fails to pay the dues, such liability cannot be termed criminal liability. Allegation that dues were allowed to accrue dishonestly, neither attract an offence under section 420 nor under section 406 or under any other section. The whole allegation in complaint petition, even if true, cannot form basis of any criminal proceeding. The proceedings are quashed. Syed Ali Mir vs Syed 0mar Ali 42 DLR (AD) 240. ....View Full Judgment

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. ....View Full Judgment

Section 561A

lt 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. ....View Full Judgment

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. ....View Full Judgment

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 spurious medicine, are not illegal and the prosecuting thereof are liable to be quashed. Ordinance No. VIII of 1982 has been promulgated 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 Slate 49 DLR (AD) 107. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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. ....View Full Judgment

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 11O— 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 Perial 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 BanJc Ltd Vs. Abdul Quayum & another— 4, MLR (1999) (AD) 340. ....View Full Judgment

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] ....View Full Judgment

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] ....View Full Judgment

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, 13BLD(AD)207 ....View Full Judgment

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, 14BLD(AD)78 ....View Full Judgment

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, 14BLD(AD)84 ....View Full Judgment

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 14BLD(AD)131 ....View Full Judgment

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, 14BLD(AD)161 ....View Full Judgment

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, 14BLD(AD)178 ....View Full Judgment

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, 14BLD(AD)206 ....View Full Judgment

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] ....View Full Judgment

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, 14BLD (AD)217 ....View Full Judgment

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, 14BLD(AD)251 ....View Full Judgment

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, 15BLD(AD)3 ....View Full Judgment