Order XIX, rule 3
|
Concise statement– Caveat was filed on behalf of the respondent, no
concise statement has been filed by the respondent in the past more than 15
years since grant of leave by this Division. In such circumstances, in view
of Order XIX, rule 3 of the Appellate Division Rules, the respondent is not
entitled to be heard by this Division since no concise statement has been
filed by him. ...Prabartak Shangha =VS= Mahmud Ali Khan,(Civil), 2020 [9 LM
(AD) 679]
....View Full Judgment
|
Prabartak Shangha =VS= Mahmud Ali Khan |
9 LM (AD) 679 |
Order XXIII, Rule 13 & Order XX, rule 5
|
Rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division’s
Rules are applicable to criminal appeals, and there is no legal bar to
convict them even if no leave was granted on this point–
The evidence on record proved beyond doubt that the killing was perpetrated
in pursuance of a conspiracy and therefore, it is consonance to law and
justice that the respondents should be awarded a legal conviction of an
offence on the basis of the evidence on record. If a graver sentence is
provided for murder in pursuance of conspiracy, the question of prejudice
would have arisen. Here the respondents have not acquired any right against
the acquittal on the charge of conspiracy. So, even without exercise of
inherent power, this Division can alter the conviction of the respondents
to one of murder in pursuance of the criminal conspiracy. The appellant has
taken ground Nos.II and IV in its concise statement for convicting the
accused on the charge of conspiracy. In view of rule 13 of Order XXIII,
rule 5 of Order XX of the Appellate Division’s Rules are applicable to
criminal appeals, and there is no legal bar to convict them even if no
leave was granted on this point. This is a settled point and I need not
make any observation on this question. In support of the charge, the
prosecution has adduced evidence and the accused persons have defended the
same. The trial court as well as the High Court Division discussed the
evidence in support of this charge but disbelieved the charge on
perfunctory grounds. Therefore, there is no legal bar to convict the
respondents on the basis of the evidence on record.... (Surendra Kumar
Sinha, J) (Minority view). .....State =VS= Dafader Marfoth Ali Shah & ors,
(Criminal), 2018 (1) [4 LM (AD) 430]
....View Full Judgment
|
State =VS= Dafader Marfoth Ali Shah & ors. |
4 LM (AD) 430 |
Order XXIII, Rule 13 and Order XX, rule 5
|
The evidence on record proved beyond doubt that the killing was perpetrated
in pursuance of a conspiracy and therefore, it is consonance to law and
justice that the respondents should be awarded a legal conviction of an
offence on the basis of the evidence on record. If a graver sentence is
provided for murder in pursuance of conspiracy, the question of prejudice
would have arisen. Here the respondents have not acquired any right against
the acquittal on the charge of conspiracy. So, even without exercise of
inherent power, this Division can alter the conviction of the respondents
to one of murder in pursuance of the criminal conspiracy. The appellant has
taken ground Nos.II and IV in its concise statement for convicting the
accused on the charge of conspiracy. In view of rule 13 of Order XXIII,
rule 5 of Order XX of the Appellate Division’s Rules are applicable to
criminal appeals, and there is no legal bar to convict them even if no
leave was granted on this point. This is a settled point and I need not
make any observation on this question. In support of the charge, the
prosecution has adduced evidence and the accused persons have defended the
same. The trial court as well as the High Court Division discussed the
evidence in support of this charge but disbelieved the charge on
perfunctory grounds. Therefore, there is no legal bar to convict the
respondents on the basis of the evidence on record. (Surendra Kumar Sinha,
J) (Minority view) …State Vs. Dafader Marfoth Ali Shah & ors, (Criminal),
5 SCOB [2015] AD 1
....View Full Judgment
|
State Vs. Dafader Marfoth Ali Shah & ors |
5 SCOB [2015] AD 1 |
Order XXVI
|
Bangladesh Service Rules, Part-1
Rule 42
Bengal Statue 1781, Bengal Regulation No.1793, Act of 1964, Act of 1865,
Act of 1871, Act of 1877 and Act 16 of 1908, Act of 1964
Service (Reorganization and Condition) Act, 1975
Constitution of Bangladesh, 1972
Article 102, 105
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Code of Civil Procedure, 1908
Order XLVII, rule 1
Extra Mohorars— Writ-petitioners are entitled to united grades and pay of
scale, equal pay and other benefits of service— The
respondents-writ-petitioners invoked writ jurisdiction under Article 102 of
the Constitution to protect their rights as Government employees and
against hostile and discriminatory action of the appellant-writ respondents
as such writ petition is very much maintainable. .....Ministry of Law,
Bangladesh =VS= Abdur Rahman Bhuiyan, (Civil), 2024(1) [16 LM (AD) 35]
....View Full Judgment
|
Ministry of Law, Bangladesh =VS= Abdur Rahman Bhuiyan |
16 LM (AD) 35 |
Order XXVI
|
The appellants have failed to make out any case calling for the review
prayed for as none of the ingredients as spelt out in Order XLVII, rule 1
of the Code of Civil Procedure or Order XXVI, rule 1 of the Appellate
Division Rules is present in this case to lay our hands to review the
impugned judgment. In the instant case, there is no reasonable ground to
justify the action of the respondent on the doctrine of necessity since the
impuged order of detention of the respondent was made, according to the
appellants, with the apprehension that somebody else (the students
community threatening to move to Sena Bhaban) may endanger public order due
to some utterances of the detenu and, as such, this Court in the impugned
judgment found the order of detention to have been passed without lawful
authority. The plea of doctrine of necessity is not warranted in the facts
and circumstances.
Bangladesh vs Mostafizur Rahman 12 BLC (AD) 193.
|
Bangladesh vs Mostafizur Rahman |
12 BLC (AD) 193 |
Order XXVI rule I
|
Order XXVI rule I—(Per Justice Md Abdul Matin) :
In view of Article 105 of the Constitution read with review rules as per
Supreme Court of Bangladesh, Appellate Division Rules, 1988 in Order XXVI,
rule I interference can be made only on the ground of an error apparent on
the face of the record. The scope of interference is very limited.
Nonetheless, since in the instant case the error is apparent on the face of
the record and in that view of the matter to limit the relief to reduction
of sentence only is not enough.
The appellants enjoyed their freedom from 9-4-1996 when they were acquitted
by the High Court Division and then they are released as per leave granting
order dated 3-11-1996 and, therefore, ends of justice will be met if the
two appellants are given the full relief by allowing the appeals as a whole
maintaining the judgment of the High Court Division insofar as the
appellants are concerned. Therefore, the appeals are allowed. Accordingly,
the appellants are acquitted Order of the Court These appeals are allowed
by majority judgment. The perod of sentence is reduced to 3 (three) years
from 7(seven) years. The appellants are directed to surrender to serve out
the sentence, if not already served out.
Khandker Zillul Bari vs State 13 BLC (AD) 97.
|
Khandker Zillul Bari vs State |
13 BLC (AD) 97 |
Order XXVI
|
Review– Removing unauthorized constructions from the periphery of Lalbagh
Fort–
Learned counsel appearing for the respondents submits that the respondents
are ready to vacate the houses if they are paid sufficient compensation.
Learned Attorney General was present at the hearing of the matter. Learned
Attorney General finds it difficult to refute the claim of the respondents.
Upon consideration of the facts and circumstances of the matter, we assess
Tk.40,00,000/- (forty lacs) as compensation to be paid to the owners who
are found to be in possession of the houses. We direct the Archeology
Department to pay Tk.40,00,000/- (forty lacs) to the owners jointly within
three months from the date receipt of the order and the owners shall
apportion the said amount according to the area they are in possession. We
direct the Archeology Department to evict the respondents on payment of
such compensation forthwith. .....Adv. Manzill Murshid =VS= Haji Md. Abdul
Hashem, (Civil), 2018 (1) [4 LM (AD) 31]
....View Full Judgment
|
Adv. Manzill Murshid =VS= Haji Md. Abdul Hashem |
4 LM (AD) 31 |
Order XXVI
|
Review– In a review petition there is no scope for rehearing–Prayer for
plaint amendment was regularly allowed or not, which it the High Court
Division duly answered that we do not find this brings any change in the
plaint–
The finding of the High Court Division to the effect that “we do not find
this brings any change in the plaint inasmuch as in the original plaint
also. In the civil petition the only issue raised was as to whether the
prayer for amendment was regularly allowed or not, which it appears the
High Court Division duly answered. Further the grounds as raised by the
learned counsel of the petitioner may be agitated at the time of hearing of
the suit. In a review petition there is no scope for rehearing. The review
petition is dismissed. .....S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa,
(Civil), 2018 (1) [4 LM (AD) 340]
....View Full Judgment
|
S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa |
4 LM (AD) 340 |
Order XXVI
|
Review–
From the judgement sought to be reviewed that the points raised in the
review petition were argued and dealt with by this Division. Hence we do
not find any error apparent on the face of the record. We do not find any
error in the judgement of this Division, and accordingly, we find no merit
in the instant review petition, which is accordingly dismissed. .....Shah
Alam(Md.) =VS= Gomati Water Development Division, (Civil), 2018 (2) [5 LM
(AD) 195]
....View Full Judgment
|
Shah Alam(Md.) =VS= Gomati Water Development Division |
5 LM (AD) 195 |
Order XXVI, rule 1
|
Review–
A Division Bench of the High Court Division hearing the criminal
miscellaneous case by judgment and order dated 17.02.2009 made the Rule
absolute and quashed the proceedings of Violation Miscellaneous Case No.234
of 2008 arising out of B.L.L. Case No.335 of 2008 pending before the First
Labour Court, Dhaka. Against the judgment and order of the High Court
Division, the petitioner filed Criminal Petition for Leave to Appeal No.233
of 2009 before this Division. This Division on hearing the leave petition
by judgment and order dated 8th December, 2009 dismissed the leave
petition, against which the instant review petition has been filed. In the
review petition, the petitioner has failed to show that the view taken by
this Division endorsing the view of the High Court Division was the result
of an error apparent on the face of the record warranting review of the
same as provided in Order XXVI, rule 1 of the Supreme Court of Bangladesh
(Appellate Division) Rules, 1988. It further appears that the grounds taken
in the review petition were also taken in the leave petition but those not
being relevant were not considered. The review petition accordingly, the
same is dismissed. .....Nur-e-Alam =VS= Grameen Phone Limited, (Criminal),
2018 (1) [4 LM (AD) 425]
....View Full Judgment
|
Nur-e-Alam =VS= Grameen Phone Limited |
4 LM (AD) 425 |
Order XXVI rules 1-6
|
The procedures provided in Order XXVI rules 1-6 of the Appellate Division
Rules, which are not inconsistent with the Act and the Rules, would guide
the procedure and practice of the Appellate Division for disposal of a
review petition, that is to say, a review in a criminal matter can be made
on the ground of an error apparent on the face of the record.
.....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes
Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]
....View Full Judgment
|
Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka |
4 LM (AD) 392 |
Order XXVI
|
Review– Where the error is so apparent and patent that review is
necessary to avoid miscarriage of justice–
We reiterated that a review cannot be equated with an appeal. It does not
confer a right in any way to a litigant. The Appellate Division
unequivocally expressed that it is now well settled that a review of an
earlier order is not permissible unless the Court is satisfied that
material error, manifest on the face of the order, undermines it's
soundness or results in miscarriage of justice. The Appellate Division
observed that a review of judgment is a serious step and the Courts are
reluctant to invoke their power except where a glaring omission or patent
mistake or grave error have crept in earlier by judicial fallibility. Power
of review is not an inherent power - it must be conferred by law either
specifically or by necessary implication and that despite there being no
provision in the Act or the Rules for review from the judgment of the
Appellate Division on appeal, by fiction of law a review is maintainable
from the judgment of the Appellate Division subject to the condition that
where the error is so apparent and patent that review is necessary to avoid
miscarriage of justice. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor,
International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]
....View Full Judgment
|
Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka |
4 LM (AD) 392 |
Order XXVI
|
The Constitution of Bangladesh, 1972
Article 105 and
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
The Penal Code, 1860
Sections 302/34 or 302/109
It is established principle of law that a judgment of the apex Court is
final on both questions of law and of fact. It is precedent for itself and
for all the Courts subordinate to it and the finality of the judgment
cannot be impinged on. In the case in hand leave was granted in Review
Petitions and thereafter criminal appeals were filed which are now under
consideration in the instant judgment. As per provision of Article 105 of
the Constitution of the People’s Republic of Bangladesh and Order XXVI of
the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 this
Division is competent enough to reconsider or interfere with its earlier
decision to prevent abuse of its process and to cure gross miscarriage of
justice. ––The trial Court as well as the High Court Division and this
Division by majority committed illegality misreading the evidence. In view
of the reasons stated hereinabove, Appellate Division is of the view that
the judgment and order dated 10.09.2014 passed by this Division with
majority view dismissing the appeals and thereby convicting the
accused-appellants was not justified and, therefore, the same is reviewed
and all the criminal appeals arose from the Criminal Review Petitions
No.68, 73,74 and 89 of 2017are allowed. .....Shamsu Habib alias Biddut =VS=
The State, (Criminal), 2023(1) [14 LM (AD) 422]
....View Full Judgment
|
Shamsu Habib alias Biddut =VS= The State |
14 LM (AD) 422 |
Rule 1 of Order XXVI
|
Constitution of Bangladesh
Article 105 and
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Rule 1 of Order XXVI
The core question for consideration is whether there is error apparent on
the face of the record which calls for interference of the impugned
judgment. It is an established jurisprudence that a review is by no means
an appeal in disguise whereby an erroneous decision is reheard and
corrected, but lies only against patent error of law. Where without any
elaborate argument one could point to the error and say that here is a
substantial point of law which stares one in the face, and there could
reasonably be no two opinions to be entertained about it, a clear case of
error apparent on the face of the record would be made out. It is only a
clerical mistake or mistake apparent on the face of the record that can be
corrected but does not include the correction of any erroneous view of law
taken by the Court. ...Md. Zahangir Alam & ors Vs. The State, (Criminal),
18 SCOB [2023] AD 45
....View Full Judgment
|
Md. Zahangir Alam & ors Vs. The State |
18 SCOB [2023] AD 45 |
Order XXVI, Rule 1 (Part IV)
|
The Penal Code, 1860
Section 302/201/34
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Rule 1 of Order XXVI (Part IV)
A review cannot be granted to urge fresh grounds when the judgment itself
does not reveal an error apparent on the face of the record–– The
nature of the offence it appears to us that the petitioner is in no way
entitled to get any sympathy. Appellate Division does 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. ––This Division is of the
view that there is hardly any scope of rehearing of the matter afresh as a
court of appeal in a review petition. Further in the instant petition the
learned counsel fails to point out any error in the judgment apparent on
the face of the record. Therefore, all the review petitions merit no
consideration and accordingly those are dismissed. .....Zahangir Alam(Md.)
=VS= The State, (Criminal), 2023(1) [14 LM (AD) 607]
....View Full Judgment
|
Zahangir Alam(Md.) =VS= The State |
14 LM (AD) 607 |
Order XXVII Rule 1
|
Violation of status quo order passed by Appellate Division.
The Appellate Division found that the contemner-respondent Mahfuzul Huq,
Director, Equity Property Management (Pvt.) Ltd. guilty of contempt of this
court and sentence him to suffer simple imprisonment for 1(one) month.
Faiz Ahmed @ Syed Ahmed and others -Vs.- Mahfuzul Huq, (Civil) 11 ALR (AD)
29-32
|
Faiz Ahmed @ Syed Ahmed and others -Vs.- Mahfuzul Huq |
11 ALR (AD) 29 |
Order XXVII Rule 13
|
Contempt of Court–
The contemner-respondent has not denied having transferred the 29 flats
after the order of status quo dated 14.03.2010 as alleged by the
petitioners. So, it appears that the contemner-respondent has transferred
as many as 29 flats constructed on the land in question in gross violation
of the order of this Court dated 14.03.2010. By this act of violation of
this court’s order the contemner-respondent has committed contempt of
court. The contemner-respondent has showed gross disrespect to this
court-the highest court of the country by violating its order which- cannot
be and should not be overlooked or taken leniently. The
contemner-respondent is directed to surrender before the central jail,
Dhaka immediately to serve out the sentence and the superintendent of
central jail is directed to receive and keep the contemner-respondent
Mahfuzul Huq in jail to serve out his sentence. The Registrar of this Court
is directed to issue warrant of commitment and detention of the
contemner-respondent in jail as per Order XXVII Rule 13 of the Supreme
Court of Bangladesh (Appellate Division) Rules, 1988. .....Faiz Ahmed =VS=
Mahfuzul Huq, (Civil), 2018 (2) [5 LM (AD) 383]
....View Full Judgment
|
Faiz Ahmed =VS= Mahfuzul Huq |
5 LM (AD) 383 |