Bangladesh Labour Act, 2006
Section 4, 117, 234 and 307
Section 200, 241A of the Code of Criminal Procedure, 1898
Infringements of sections 4, 117 and 234 have not been made punishable in any other provisions under Chapter 19 of the Act No.42 of 2006. As such infringements of above provisions are punishable under section 307 of the Bangladesh Labour Ain, 2006 and subject to sentence of fine upto Tk.25,000/- ...Prof. Dr. Muhammad Yunus & ors Vs. The State & anr, (Criminal), 18 SCOB [2023] HCD 275 ....View Full Judgment

Code of Criminal Procedure, 1898
Section 61, 167, 164
Penal Code, 1860
Section 302
Effect of delay in producing the accused:
We are of the opinion that, even if, there were some unintentional delay or failure of the police to produce the accused within 24 hours, this mere delay alone should not be a ground to brush aside a confessional statement which has been found to be truth and voluntary in nature, since established by other evidence. ...State and others Vs. Golam Mostafa Mithu and others, (Criminal), 18 SCOB [2023] HCD 8 ....View Full Judgment

Since as per section 103 (2) of the Code of Criminal Procedure the seizure list must be prepared in the place of occurrence and which is mandatory provision and without fulfillment of the said provision the entire procedure has been vitiated. Md. Shah Alam Ukil, son of late Muksed Ali Ukil of Village Char Kalpur, Police Station and District – Gopalganj. -Vs.- The State (Criminal) 2019 ALR (HCD) Online 289 ....View Full Judgment

The High Court Division held that it is found that the provision of search and seizure provided under section 103 of the code of criminal procedure has not been properly followed in the instant case. Even it is found that immediately after the recovery of the alamats the police was called for and the police officer came to the place of occurrence at about 11.00 a.m. whereas the seizure list was not prepared at the place of occurrence and admittedly the same were brought to the police officer at Khalishpur Thana at about 8.30 p.m. and the seizure list was prepared in the Thana. It is now settled principle that in case of search the procedure of section 103 of the Code of Criminal Procedure should strictly be followed and any search and seized without complying with the aforesaid provision must be deemed to be illegal and must be left out of consideration in criminal trial. Md. Shah Alam Ukil, son of late Muksed Ali Ukil of Village Char Kalpur, Police Station and District – Gopalganj. -Vs.- The State (Criminal) 2019 ALR (HCD) Online 289 ....View Full Judgment

Anti-Corruption Commission Act, 2004
Sections 19 and 20 and
Rule 20 of the Anti-Corruption Commission Rules, 2007 read with
Section 160 of the Code of Criminal Procedure:
It appears from the record that the ACC in the name of exercising discretionary power issued the impugned notices hurriedly during pendency of Writ Petition 1087 of 2019 directing the petitioners to appear before the ACC to make statements with respect to taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and other taxes at the time of purchase of the land in question, which is tantamount to interference in the administration of justice that cannot escape characterization of a mala fide act having something in the mind of the Respondent No.3 and that is why we have no hesitation to say that the impugned notices have been issued abusing of the discretion and thus the same are liable to be interfered with by this Court. …Md. Atiqur Rahman & anr Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 70 ....View Full Judgment

Code of Criminal Procedure [V of 1898]
Sections 164, 364 read with
Evidence Act [I of 1872]
Section 80
As the confessional statements of the accused were recorded in accordance with the provision of section 164 and 364 of the Code of Criminal Procedure and those were signed by the confessing accused as well as by the Magistrates, the court shall presume under section 80 of the Evidence Act that the documents are genuine and the statement as to eh circumstances under which it was taken by the Magistrate are true and confessions were duly taken. The State -Vs- 1. Md. Nasiruddin @ Anik (Criminal) 2019 ALR (HCD) Online 275 ....View Full Judgment

The accused made the confessional statement on 13.10.2007 and the retraction petition filed on 19.12.2007 i.e. the petition for retraction was made on belated stage which lost its force to stand.
The High Court Division held that it appears that accused made the confessional statement on 13.10.2007 and the retraction petition filed on 19.12.2007 i.e. the petition for retraction was made on belated stage which lost its force to stand, moreover, in support of his submission learned Advocate for the condemned-accused-prisoner failed to show a simple instance available on record for which it could be considered that the accused Shadat Hossain @ Shajib made the confessional statement out of fear of police or as a result of physical torture. It does not appear from the confession of the accused that the condemned-accused-prisoner showed the learned Magistrate any mark of physical torture on him. Rather, on going through the total evidences of PW.12, the confessional statement recording Magistrate, It appears that before recording statement he observed the provision of section 164 (3) of the Code of Criminal Procedure. The State -Vs.- Md. Shadat Hossain alias Shajib (Criminal) 2019 ALR (HCD) Online 139 ....View Full Judgment

Code of Criminal Procedure, 1898
Section 164
Penal Code, 1860
Section 302
In the case before us, we however, have found that the order of conviction and sentence is not based solely on the confessional statement of the convict, rather it is based on the testimony of the witnesses. Moreover, the material exhibits, inquest reports, post mortem reports all these evidence clearly establish the complicity of the convict in the commission of the offence, he has been charged with. In this case, the confessional statement under section 164 of the Code of Criminal Procedure, is supported by other evidences and corroborated by the oral evidences. Moreover, when the truth of the statement made in the confessional statement are established by other relevant, admissible and independent evidences, then the voluntary nature of the same is proved. We have found the confessional evidence as true and voluntary. ...State and others Vs. Golam Mostafa Mithu and others, (Criminal), 18 SCOB [2023] HCD 8 ....View Full Judgment

It is by now well settled that an accused can be found guilty and convicted solely banking on his confession if, on scrutiny, it is found to be true, voluntary and inculpatory in nature. ...The State Vs. Md. Hamidul, (Criminal), 18 SCOB [2023] HCD 224 ....View Full Judgment

Appropriateness of quantum of sentence awarded to the convict:
Now, we can turn our eyes to the quantum of sentence awarded to accused Md. Hamidul to see whether the same is appropriate in the facts and circumstances of the instant case. Admittedly, there is no eye witness of the occurrence leading to the incident of murder of victim Milon Babu and the fate of the case mainly hinges upon the lone confession of the accused together with some incriminating circumstances. Moreover, as per record, there is no previous criminal history of the accused who has been suffering the pangs and torments of the death sentence for the last about more than 5(five) years for no fault of his own. Therefore, considering the aggravating as well as mitigating circumstances of the case, we are of the dispassionate view that justice would be best served if the death sentence of the accused is commuted to one of life imprisonment along with fine. ...The State Vs. Md. Hamidul, (Criminal), 18 SCOB [2023] HCD 224 ....View Full Judgment

Issuance of a notice by the Magistrate to the informant at the time of consideration of final report is a “must”. Most. Shaila Sharmin alias Rita -Vs.- Al-Imran alias Shahin and four others (Criminal) 2019 ALR (HCD) Online 286 ....View Full Judgment

If an accused is discharged from prosecution or on a final report that means that the accused has been discharged from the custody not discharged from the case and subsequent prosecution of the accused is permissible. Most. Shaila Sharmin alias Rita -Vs.- Al-Imran alias Shahin and four others (Criminal) 2019 ALR (HCD) Online 286 ....View Full Judgment

The High Court Division views on the relevant legal position and the procedure to be followed are outlined below:
(A) Section 195(1)(c) clearly specifies that three classes of courts can lodge such a complaint, namely – (1) the court (Civil, Criminal, Revenue) in which the document was produced or given in evidence (vide section 195(1) (c) and 476), and (2) a superior court to which the firstly mentioned court is subordinate, i.e. the respective appellate court (vide section 195(1) (c) and 195(3), and (3) the High Court Division through an officer authorized or appointed by that court for this purpose (vide proviso to section 476(1).
(B) Section 195(1) (c) Cr.P.C, prohibits the taking of cognizance of an offence under section 463,471,475 and 476 of the Penal Code upon complaint of a private person. But this does not prohibit a private person to initiate the process by way of filing an application or complaint, in what-ever named called, requesting the concerned court to lodge a complaint under section 195(1) (c) and 476(1).
(C) In fact, in most cases, a private per-son is the real victim of the use of a forged document in a court case. So the clear intention of the legislature is that a private person can lawfully file an application or complaint as stated is sub-para (B) above. This right of a private person is evident from the expression occurring in section 476 namely “whether on application made to it in this behalf or otherwise”. This expression indicates that the court can initiate the process upon an application of a private persons, and also on its own initiative or on direction of superior court or in the other appropriate cases.
The right of private persons is further re-iterated in section 476B by using the expression “Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint ------------ may appeal ---------- ”. The person against whom complaint is made by the court can also prefer appeal against of the court to make a complaint decision. So responding to such application/complaint is a legal responsibility of the court to which it is made.
(D) The complaint under section 195(1) clause (b) or clause (c) relating to a forged document can be lodged by a court, after the decision on the matter of forgery attains finality, that is after it is finally decided by a competent court that the document in question is a forged one. The expression “or of some other court to which such court is subordinate” occurring in section 195(1)(c) denotes finality of the decision on forgery and section 476(3) confirms the requirement of finality on the decision on the alleged forgery.
(E) Before lodgment of a complaint, section 476(1) casts a duty upon the complaining Court (Civil, Criminal, Revenue) as fol¬lows: firstly the court in whose proceeding the document in question was produced or given in evidence and, as the case may be, a superior court including the High Court Division, has to form an opinion that the offences referred to in section 195(1) clause (b) or (c) “appears to have been committed”, secondly only the said three types of court as mentioned at sub-para (A) above and not any other court, is to conduct a “preliminary inquiry” for satisfying itself as to whether or not a complaint should be made to a competent court and thirdly, after being satisfied in the preliminary inquiry, the court has to make a complaint in writing to a “Magistrate of the first class” or to a “Metropolitan Magistrate” in case of Metropolitan areas.
(F) Section 476 Cr.P.C does not specify the procedure to be followed in the preliminary inquiry and therefore it may be done in a way which the complaining court (Civil, Criminal or Revenue) including the superior court or the High Court Division considers appropriate e.g. by way of examination of the documents that is on the record of the case wherein the complaint has been lodged alleging forgery and also of the previous case, if any, wherein the alleged forged document was produced or given in evidence. Expert opinion may also be obtained about the alleged forgery.
(G) In making the complaint under section 476(1), read with section 195(1) (c), the said complaining Court should specify the name(s) and address(s) of the accused, the date, time, place and manner of the alleged offence along with the names and ad-dresses of the probable witnesses, as are generally mentioned in other complaints. That court should attach the probable documentary evidence with the complaint.
(H) The role of the complaining court is that of a court making an inquiry. Such role is similar to that of an investigating officer who conducts an investigation under section 167 Cr.P.C. It is evident from section 476(2), which provides that a complaint under section 476(1), 476A or 467B shall be treated as a police report as far as may be. So the complaining court should for-ward to the Magistrate 1st Class or as the case may be to a Metropolitan Magistrate, the order containing the outcome of the preliminary inquiry and the decision to make the complaint and it must be signed by the complaining court. However if the complaining court is the High Court Division an officer authorized by it may sign the complaint.
(I) However for practical purposes, the complaining court should attach with the complaint, the certified copies of the relevant order of the case in which the alleged forged document has been used and other relevant documents e.g. the complaint, FIR charge-sheet etc. of that case and the deposition of the complainant made under section 200 Cr.P.C or as a witness at the trial to show that the document in question was produced or given in evidence in the case, and also the documents that are available in the second case. It is better to send the entire record of the case including the order sheet in which the decision to make a com-plaint is recorded and also of the contents of the record of the previous case. The complaining Court should retain the at-tested photocopies of those two records.
(J) According to section 476(2), Cr.P.C., upon receipt of the complaint under section 476(1) or section 476A or 476B, the Magistrate 1st Class has to treat the complaint as a police report and has to take a decision whether he takes cognizance or not. In appropriate cases, he may direct further investigation.
(K) It is noted that, as per clause (aa) of the proviso to section 200, Cr.P.C. the Magistrate 1st Class need not examine the Presiding Judge or Magistrate or the Officer of the complaining court on oath for the purpose of taking cognizance on the basis of the complaint, simply because the complaint is to be treated as a police report as per section 476(2).
(L) But at the trial, the Magistrate or the presiding judge or officer of the complaining court should be examined as a witness. However, in most cases, such a witness may not have to state the details of the background facts, as the complaint cum-order along is expected to contain the details. Such a witness should at least state the fact of lodgment of the complaint and the decision on lodging the complaint. He should produce and prove it as an Exhibit and also the certified copies attached with the complaint.
(M) It is necessary that the trial court should see that the complaint signed by the complaining court and the relevant documents are properly admitted in evidence as Exhibits as in an ordinary criminal trial. If, for some reason, the Magistrate, Judge, or Officer of the complaining Court is not available, some other competent witness e.g a staff of the complaining court may be allowed to prove the complaint and the signature of complaining Magistrate/Judge/Officer and also the attached documents. If any expert opinion is obtained he should examined as a separate witness. The defense will be at liberty to cross examine all witnesses as in an ordinary trial. Aleya Begum -Vs.- The State represented by the Deputy Commissioner, Bagerhat & ors (Criminal) 2019 ALR (HCD) Online 26 ....View Full Judgment

Produced or given in evidence
It is noted that expression “produced or given in evidence” occurring in section 195(1)(c) is significant. It means that mere making or creating a false document for future use of the document in a Court case or using for other purpose is not sufficient for the purpose of taking cognizance by a court of an offences referred to in that section. The said provision requires that the document must have been “produced or given in evidence” in a case. The alleged action of accused Aleya Begum namely filing of the affidavit in the case filed by her (P. Case No. 49 of 2010) can very well be considered as “produced” in that case, within the purview of section 195(1) (c) Cr.P.C. The third condition specified by section 195(1)(c) requires that when the court is satisfied that the above noted 1st and 2nd conditions exist, the court itself, in whose proceeding the document was used, has to lodge a complaint. Aleya Begum -Vs.- The State represented by the Deputy Commissioner, Bagerhat & ors (Criminal) 2019 ALR (HCD) Online 26 ....View Full Judgment

Penal Code [XLV of 1860]
Sections 463, 471, 475 and 476
Code of Criminal Procedure [V of 1898]
Section 195(1)(c)
A Court cannot take cognizance of an offence under sections 463, 471, 475 or 476 of the Penal Code, unless the following three conditions are fulfilled, namely:-
(a) the alleged offence under the said sections of the Penal Code was committed by “a party to any proceeding in any court” and
(b) a document was “produced or given in evidence in such proceeding” i.e. in a pending case or in an earlier case by that person, and
(c) the court can take cognizance of the said offence only when the complaint is made by the court in whose proceeding the document was produced or given in evidence or upon a complaint of a superior court. Aleya Begum -Vs.- The State represented by the Deputy Commissioner, Bagerhat & ors (Criminal) 2019 ALR (HCD) Online 26 ....View Full Judgment

The accused appellant was the Government employee of the post Office and without any previous sanction from the Government under section 197 of the Code of Criminal Procedure the trial has been held as such the same should not be sustained. Md. Shah Alam Ukil, son of late Muksed Ali Ukil of Village Char Kalpur, Police Station and District – Gopalganj. -Vs.- The State (Criminal) 2019 ALR (HCD) Online 289 ....View Full Judgment

The High Court Division held that admittedly the accused was a Government employee at that time and no case from the prosecution that he was dismissed from service when the trial was commenced. In such a case previous sanction for prosecuting the Government employee is mandatory provided under section 197 of the Code of Criminal Procedure in case of scheduled offence. Md. Shah Alam Ukil, son of late Muksed Ali Ukil of Village Char Kalpur, Police Station and District – Gopalganj. -Vs.- The State (Criminal) 2019 ALR (HCD) Online 289 ....View Full Judgment

Reasons for disagreement with Indian view. In our way of examination of the issue, however, we failed to pursue ourselves with the Indian Supreme Court’s ratio, for, in our view though there may be absence of clearer description about the responsibility of the accused-director in the petition of complaint due to poor drafting of the learned Advocate, however, since the Magistrate is empowered to obtain clearer version form the complainant in recording statements under Section 200 CrPC in addition to the contents of the complaint-petition, the requirement of making specific averments is met up when the Magistrate gains her/his primary satisfaction as to commission of offence, not only from the complaint-petition but also from the statements made under Section 200 CrPC, in conjunction with the papers annexed to the petition of complaint. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Section 200 of the CrPC; when a Magistrate is competent to take cognizance. In order to take cognizance, the prior requirement is to have a prima facie satisfaction by the Magistrate as to commission of an offence by the accused. In articulating it, all that may be said are that upon receiving a petition of complaint when the Magistrate decides to examine the complainant, s/he is statutorily bound to primarily satisfy her/himself as to commission of an offence and only after being prima facie satisfied that an offence might have been committed, the Magistrate acquires her/his competency, in other words s/he becomes authorized by the aforesaid statutory provision, to take cognizance. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Negotiable Instruments Act [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 200
Way-out for a director of the company to delist his/her name from the category of the accused. Without facing rigour of trial of such an accusation, there is a way-out for a director of a company to obliterate her/his name from the list of the accused-person if s/he had specifically denied the liability of dishonouring the cheque by replying to the demand/legal notice upon enclosing the corroborating-papers/documents therewith in substantiating her aforesaid denial. Usually, upon receipt of the petition of complaint under Section 138 of the NI Act, the Magistrate would decide to take cognizance on the basis of averments made in the petition of complaint, statements recorded under Section 200 of the CrPC and the annexed papers, which include the dishonoured-cheque, bank-slip containing information as to dishonouring the cheque, the demand/legal notice with hand-acknowledgment/registered receipt or notification in the daily national newspaper and the reply to the demand/legal notice. When a Magistrate would have the opportunity to peruse the reply to the demand/legal notice containing specific denial by a director as to absence of her/his knowledge about issuance/ dishonouring of the cheque or her/his resignation from the company be-fore issuance of the cheque, the Magistrate is duty bound to consider the same and, thereby, decide as to whether cognizance should be taken against the said accused-director, for, issuance of a demand/legal notice and a reply thereto are the essential components of constituting an offence under Section 138 of the NI Act. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Code of Criminal Procedure [V of 1898]
Section 239(d) and 235(3) read with
Penal Code [XLV of 1860]
Section 307
Village Court Act, 2006
Though charges were under section 323/379 of the Penal Code separately framed against the accused petitioners but the incident of this case took place at the same time and place of occurrence. Admittedly, section 307 is not triable by the Village Court and since the offence was committed by the accused petitioners in course of same transaction, there is no scope to send the case record to the Village Court for disposal of this case.
The High Court Division held that since the village court has no jurisdiction to try the offence under section 307 of the Penal Code, the High Court Division is unable to accept the submission of the learned Advocate for the accused petitioner that the of-fences of this case being triable by the Village Court should be sent to the concerned court for trial. In view of the discussion made above and considering the facts and circumstances of the case, the High Court Division finds no merit in this Rule. In the result, the Rule is discharged. Md. Ishaque Hawlader and others -Vs.-The State and another (Criminal) 2019 ALR (HCD) Online 341 ....View Full Judgment

Negotiable Instruments Act [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 265C
If the cheque deposited after expiry of its validity as per section 138(1)(a) of the Negotiable Instruments Act then the accuseds will get benefit upon adducing evidence in the trial. But at the stage of framing charge, trial Court is not under obligation to judge truth, veracity and effect of the evidence thoroughly and meticulously.
The High Court Division held that in framing charge, learned Additional Metropolitan Sessions Judge was restricticed to find out whether there was a primafacie case or not for proceeding the accuseds and could not enter into a detailed discussions of the merits or demerits of the case. In revisional jurisdiction, the High Court Division cannot, in our opinion, launch on a detailed and meticulous examination of the case on merits and cannot judge truth, veracity and effect of the evidence in disposing revisional application filed against the order of framing charge. Rashiduzzaman Millat and another -Vs.-The State and another (Criminal) 2019 ALR (HCD) Online 344 ....View Full Judgment

Code of Criminal Procedure, 1898
Sections 265(H), 435, 439
Criminal Rules and Orders, [Volume I]
Rule No. 638
From a plain reading of the provisions of section 265H it transpires vividly that after framing charge against the accused, the Sessions Judge is bound to examine witnesses and upon hearing the prosecution as well as defence if he considers that there is no evidence to proceed against the accused then the Court should pass an order of acquittal to acquit the accused. Recording the evidence before passing such an order is mandatory under section 265H of the Code. ...Md. Al Amin Vs. The State & ors, (Criminal), 18 SCOB [2023] HCD 294 ....View Full Judgment

Code of Criminal Procedure, 1898
Section 265H
Criminal Rules and Orders, [Volume I]
Rule No. 638
Necessary measures should be taken to secure the attendance of the witness:
Our considered view is that in exercising his power under section 265H of the Code, the Sessions Judges, at first, shall take meaningful steps for securing the attendance of the witnesses; and secondly: if any witness is available record the same; and thirdly: in case of non-availability of any other witnesses, take hearings from both the parties and thereafter shall pass an order of acquittal of the accused. ...Md. Al Amin Vs. The State & ors, (Criminal), 18 SCOB [2023] HCD 294 ....View Full Judgment

Code of Criminal Procedure, 1898
Sections 265(H), 435, 439
Criminal Rules and Orders, [Volume I]
Rule No. 638
The Court must exhaust all the procedure for taking down evidence before passing the order of acquittal:
Under the provisions of section 265H of the Code the duty of a Sessions Judge is to look into the prosecution evidence and materials brought out in the examination of the accused and thereafter should hear the learned Advocates of both sides and considering the evidences and materials on record if he finds that all the procedures under the law have been exhausted and if he is of the opinion that he has taken all possible steps for taking down the evidences of the prosecution but the prosecution has miserably failed to comply with the order of the Court, in that case, the duty casts on the Court to pass an order of acquittal of the accused. But in the present case, it appears manifestly that the learned Joint Sessions Judge without complying with the relevant laws and procedures has illegally dismissed the petition filed by the prosecution with the observations that the prosecution is not willing to adduce evidences. ...Md. Al Amin Vs. The State & ors, (Criminal), 18 SCOB [2023] HCD 294 ....View Full Judgment

The Negotiable Instruments Act, 1881 [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 342
When the cheques in question were dishonoured due to insufficiency of fund, the plea taken by the accused petitioner that he has not put his signature in the cheques should not be considered positively for the reason. The High Court Division held that if there would have appeared any dissimilarity of signatures given by the drawer of the cheques, the bank manager would have definitely written that the signatures of the cheques are not similar and in that case he had returned back the cheques as unpaid due to dissimilarity of the drawer’s signature. But in the instant cases, no such remarks were passed by the bank manager at the time when the cheques were returned back as unpaid. Rather, he has dishonoured the cheques due to insufficiency of fund in the account of the accused petitioner. The High Court Division finds no merit in these Rule. Md. Abul Hashem -Vs.- The State and another. (Criminal) 2019 ALR (HCD) Online 82 ....View Full Judgment

We would like to put on record one legal infirmity that has been committed by the learned Judge of the court below. On perusal of the impugned judgment and order, it reveals that the learned Judge on his own accord asked as many as 13(thirteen) questions to the accused while he was being examined under section 342 of the Code. Not only that the judge concerned has also used the same against the accused in finding his culpability in the killing of the victim boy. The above approach adopted by the trial Judge is absolutely weird, uncalled for and illegal as well. ...The State Vs. Md. Hamidul, (Criminal), 18 SCOB [2023] HCD 224 ....View Full Judgment

It is apparent that the learned Additional Sessions Judge has committed gross illegality in using the statement of accused Md. Hamidul under section 342 of the Code which is all together foreign in criminal jurisprudence inasmuch as a statement given by an accused cannot be used as evidence to find his culpability. ...The State Vs. Md. Hamidul, (Criminal), 18 SCOB [2023] HCD 224 ....View Full Judgment

When injured in police custody, burden is upon them:
From the evidence of P.W.4, 7, 8, 9, 12, 13, 5, 6 it appears the informant Kader had been taken as unhurt into the room of the accused Helaluddin in khilgaon thana whereon the accused had been injured. Since the alleged occurrence took place in police custody, it is duty of officer in charge to explain how an unhurt man was injured in his room. The accused was examined under section 342 of the Code of Criminal Procedure giving him an opportunity to explain the evidence and circumstances appearing against him. During the examination under section 342 of the Code of Criminal Procedure the accused said that he will give a written statement. But on perusal of record no written statement has been found. Both court below did not utter that the accused gave a written statement. Since on declaration by the accused no written documents has been produced by the accused, no evidence has been adduced to defense himself which leads the statement made by prosecution witnesses that under custody of accused officer in charge of khilgaon, the informant had been inflected chapati blow by the accused was remained unchallenged. ...Md. Helal Uddin Vs. The State, (Criminal), 18 SCOB [2023] HCD 264 ....View Full Judgment

Torture in police custody if goes unpunished, the criminals are encouraged and the society suffers:
In recent years, torture in police custody is increasing. The crime in police custody is the worst kind of Crime in a civilized society. The court must keep in mind when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin became frustrated and lost their confidence towards law. The victim/informant is a young BCS qualified man. Moreover, the two cases had been filed against him, wherefrom he had been released as no evidence had been found during the investigation. Considering those aspects I am of the view that the cruelty and violence with which the accused caused injury the victim deserves to be treated with strict and heavy hand. ...Md. Helal Uddin Vs. The State, (Criminal), 18 SCOB [2023] HCD 264 ....View Full Judgment

Code of Criminal Procedure [V of 1898]
Section 344 read with
Negotiable Instruments Act [XXVI of 1881]
Section 138 read with
Arbitration Act [I of 2001]
Section 12
Arbitration proceedings, which is of civil nature, private rights and obligations of the respective contending parties are determined including recovery of money by way of damages for the loss caused by cheques, if any, cause of action so has arisen under section 138 of the Act and under section 12 of the Arbitration Act are altogether distinct having different entailment/consequence, as such criminal proceedings cannot be stayed.
The High Court Division held that in the instant case, pursuant to business transaction the accused petitioner entered into respective agreements with the complainant opposite party to sell agricultural products locally which were imported by the said complainant. During the course of business the accused petitioner issued 4 (four) post dated cheques in question, which were ultimately dishonoured by the drawee bank with the remark “payment stopped by drawer”. In this regard, the categorical assertion of the opposite party is that vide clause 3.4 of the agreement the opposite party company can take any legal action against the petitioner under the Act of 1881 if the cheques are dishonoured for any reason whatsoever. As such, merely because there is arbitration proceeding pending under section 12 of the arbitration in between the contending parties the proceeding under section 138 of the Act cannot be stayed. Mushfequr Rahman -Vs.- The State (Criminal) 2019 ALR (HCD) Online 155 ....View Full Judgment

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.

It is well settled that confession, whether retracted or not, if found to be true and voluntary, can be the sole basis of conviction of the maker.
The High Court Division held that in this case, in a pre-planned way with criminal intention the accused person killed the victim deceased, in a cold-blooded, brutal, diabolical and gruesome manner. Now, it can be said from the argument advanced by the learned Advocates for the condemned-accused-prisoner and on consideration of confessional statement of accused Shajib (Exhibit-11), evidences of PW.12 learned Magistrate, PW.10 Doctor, PW.13 Investigation Officer, PW.1 informant, PW.2 victim’s mother, PW.3 last seen witness, recovered knife material Exhibit-I, PW.9 maker of the DNA Test Report (Exhibit-6) and all other circumstances that the confessional statement of accused Shadat Hossain @ Shajib is absolutely true and voluntary in nature and the argument of the learned lawyer for the defence on this point cannot be accepted. The State -Vs.- Md. Shadat Hossain alias Shajib (Criminal) 2019 ALR (HCD) Online 139 ....View Full Judgment

CrPC
Section 439
Penal Code
Sections 409/420/109
Money Laundering Protirodh Ain, 2012
Sections 4(2) and 4 (3)
Prevention of Corruption Act, 1947
Section 5(2)
Exercise of revisional jurisdiction of High Court Division to ensure justice under Section 439 of CrPC:
On an application by a party or which otherwise comes to its knowledge, High Court Division is legally competent to exercise its revisional jurisdiction under Section 439 of the Code of Criminal Procedure to examine the facts and circumstances of the case and the judgment and the order if there is any error which may not ensure justice to the litigant public in not following the correct principles of law and fact in assessing the material and evidence in proper perspective and in that case, High Court Division may, in its discretion, exercise any of the powers conferred on a court of appeal by Sections 423, 426, 427 and 428 or on a court by Section 338. ...Sultana Fahmida Vs. The State & anr, (Criminal), 18 SCOB [2023] HCD 54 ....View Full Judgment

Sections 476 as quoted above prescribes the procedure to be followed by the court (Civil Criminal or Revenue) when a complaint or application is made containing allegations that a forged document has been produced or given in evidence in a case. Aleya Begum -Vs.- The State represented by the Deputy Commissioner, Bagerhat & ors (Criminal) 2019 ALR (HCD) Online 26 ....View Full Judgment

Section 476A, empowers a superior court i.e. the appellate court exercising Civil, Criminal or Revenue jurisdiction to lodge a complaint under section 195(1)(c). This means that the lower court in which the document was produced or given in evidence might have omitted to lodge the complaint. But the appellate court can do so, upon an application or its on own initiative. In doing so it has to follow the same procedure as laid down in section 476 (vide section 195(3) and 476A). Even the High Court Division cane lodge such a com-plaint, in which case the complaint is to be loged by an officer appointed or authorized by that court (vide section 476(1) proviso). Aleya Begum -Vs.- The State represented by the Deputy Commissioner, Bagerhat & ors (Criminal) 2019 ALR (HCD) Online 26 ....View Full Judgment

Code of Criminal Procedure [V of 1898]
Sections 497 and 498 read with
Money Laundering Prevention Act [V of 2012]
Section 13 read with
Criminal Law (Amendment) Act [XL of 1958]
Sec¬tion 4(2)
Whether before taking cognizance of any offence by a competent Court having jurisdiction to try a case relating thereto filed under the Anti-Corruption Commission Act, 2004 (hereinafter referred to as the Act of 2004), in particular, under the Money Laundering Prevention Act, 2012 (in short, the Act of 2012), the Magistrate or any other Court having no jurisdiction to take cognizance thereof has got any authority to entertain and dispose of an application for bail.
The High Court Division held that while dealing with an application for bail, the Magistrate or the Court concerned will consider the materials furnished by the prosecution only and by considering those materials furnished by the prosecution, the Magistrate or the Court at his or its discretion may grant or refuse bail to the accused. At this juncture, the High Court Division feels tempted to reiterate that it is a settled proposition of law that the defence plea can only be raised and gone into at the time of trial of the case. This is essentially a matter of evidence and trial. Before conclusion of the trial of the case, the veracity of the defence plea can not be ascertained. At the pretrial stage, the defence plea can not be taken into account at any rate. But if a Judge or a Metropolitan/Judicial Magistrate does so, that will amount to begging the question. So this exercise is deprecated. The State -Vs.- M. Wahidul Haque and others (Criminal) 2019 ALR (HCD) Online 42 ....View Full Judgment

Code of Criminal Procedure [V of 1898]
Sections 497 and 498 read with
Money Laundering Prevention Act [V of 2012]
Section 13 read with
Criminal Law (Amendment) Act [XL of 1958]
Section 4(2)
The High Court Division further held that there is no express or implied provision within the four corners of the Act of 2012 debarring or prohibiting the Metropolitan or Judicial Magistracy from entertaining and dealing with any application for bail or remand at the pretrial stage, the Magistracy is well-authorized to entertain and deal therewith in accordance with the above-mentioned provisions of the Code. To sum up, at the pretrial stage, that is to say, from the date of lodgment of the FIR with the concerned Police Station till taking cognizance of the offence by the Senior Special Judge under section 4(2) of the Criminal Law (Amendment) Act, 1958, the Judicial or Metropolitan Magistracy is empowered to entertain, deal with and dispose of any application for bail of an accused in a case under the Act of 2012 under section 497 of the Code of Criminal Procedure. Similarly at the pretrial stage, in the absence of any express or implied prohibition in any other special law, the Metropolitan or Judicial Magistracy may entertain, deal with and dispose of any application for bail of an accused under section 497 of the Code. In case of rejection of his application for bail, he may move the Court of Session by filing a Criminal Miscellaneous Case under section 498 and thereafter in case of failure before the Court of Session, he can move the High Court Division under the self-same section 498 of the aforesaid Code for bail. In this connection, it is to be remembered that the powers of granting bail of the Court of Session and the High Court Division under section 498 of the Code are concurrent. Again after taking cognizance of any offence punishable under the Act of 2012, if an accused files an application for bail, then the Senior Special Judge/Special Judge concerned will hear and dis¬pose of the same in accordance with the provisions of section 13 of the Act of 2012. In case of refusal of bail by the Senior Special Judge or the Special Judge, as the case may be, the accused may prefer an appeal there against before the High Court Division under section 22 of the Act of 2012. The State -Vs.- M. Wahidul Haque and others (Criminal) 2019 ALR (HCD) Online 42 ....View Full Judgment

From the reported cases, it is found that all the cases were filed either mentioning or non-mentioning the name of the persons/accused. But in the instant case in hands, not a single case has been filed against the petitioner and the ad-interim bail has been granted to the petitioner till submission of the charge-sheet. Since no case has been filed against petitioner, the question of granting anticipatory bail to the petitioner till submission of the police report is a misconceived one and it is a vague proposition of law. .....Justice Md. Joynul Abedin (Rtd.) Vs. State & anr, (Criminal), 19 SCOB [2024] HCD 94 ....View Full Judgment

It is pertinent to note that anticipatory bail may be granted even to a person against whom no first information report has been lodged subject to the condition that a reasonable belief/ground exists for imminence of a likely arrest for malicious and omnibus reasons. .....Justice Md. Joynul Abedin (Rtd.) Vs. State & anr, (Criminal), 19 SCOB [2024] HCD 94 ....View Full Judgment

The anticipatory bail is neither a passport to the commission of crimes nor shield against any and all kinds of accusations, likely or unlikely. The anticipatory bail cannot be granted to a person/accused for the reason that he or she is in mere fear that he or she may be arrested and the same cannot be granted on vague apprehension of arrest. Mere fear is not a belief for which reason the accused/person may be granted anticipatory bail. Anyway, if we make the Rule absolute in this matter, the floodgate of the anticipatory bail will be open and everyone will come before the Court for anticipatory bail on fancy grounds. .....Justice Md. Joynul Abedin (Rtd.) Vs. State & anr, (Criminal), 19 SCOB [2024] HCD 94 ....View Full Judgment

Now it is well settled that our High Court Division or the Court of Sessions can exercise the power under Section 498 of the Code of Criminal Procedure where the perception of the Court is that a proceeding that has been lodged against the accused is for ulterior motive either political or otherwise for harassing the accused and not for securing the justice, or to achieve a collateral purpose for harassment or humiliation. .....Justice Md. Joynul Abedin (Rtd.) Vs. State & anr, (Criminal), 19 SCOB [2024] HCD 94 ....View Full Judgment

At what stage 561A-application can be filed. The very filing of a criminal case, in other words, the entire criminal proceedings, may be challenged by an accused at any stage. The said stage may be immediate after filing of the case in the police station/Court or during investigation/inquiry of the case or may be at any phase of the trial or may be at any point of time after pronouncement of the Judgment. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Whether 561A-application should be filed before completion of the investigation/inquiry or it should be filed after commencement of trial by framing charge. If the accused, at any point of time be-fore pronouncement of the Judgment, can primarily satisfy this Court that the allegation brought against her/him does not constitute any offence or it is ex-facie preposterous or mala fide or apparently the proceeding is directed at harassing the accused, or the same is nakedly an abuse of the process of Court or is barred by law or the trial Court does not have the jurisdiction to try the case, in any of the above situations, an application under Section 561A of the CrPC is entertainable despite availability of the appellate or revisional forum. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

Section 561A-Whether 561A-application can be filed after pronouncement of judgment.
At any stage after the pronouncement of the Judgment and Order of conviction and sentence, be the stage is of appellate or direct-revisional or post-appellate revisional, if the accused can satisfy this Court that having no other alternative forum, s/he ‘has come in clean hands’ before the High Court Division ‘as a bonafide petitioner’ and the case is one of no evidence or the trial Court did not have jurisdiction to try the case or the Judgment suffers from malice in law, then, this Court is competent to issue a Rule towards examining the prayer of the accused to see whether the Judgment and Order of conviction and sentence in question should be quashed, as was held in the case of Md. Shamim Vs The State 10 ALR (HCD) 2017(2) 286. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 230 ....View Full Judgment

Pre-Conditions for obtaining Rule in a 561A-application.
An accused must bear in mind that normally this Court wishes to see that a criminal case is proceeded with as per the procedures enshrined in the CrPC and this Court is always loath in interfering with investigation or trial of a criminal case and, hence, usually no Rule shall be issued by this Court in a petition under Section 561A of the CrPC if the principles laid down hereinbefore are taken by the accused as stereotyped ground towards making rhetoric submission before this Court without specifically referring to factual aspect of the case from the FIR or police report or other prosecution materials. An accused must bear in mind the time-honored principle of this Court that only in exceptional circumstance, which is rarely found in practice, this Court would be inclined to issue Rule in a petition under Section 561A CrPC during a criminal case’s investigation or trial; this Court would not issue a Rule in a 561A petition as a matter of routine-work inasmuch as power of this Court under Section 561A CrPC is required to be used by this Court very sparingly in the rarest of rare cases towards examining the ground taken by the petitioner for quashing a criminal case, subject to the condition that the accused shall assist this Court in expeditiously disposing of the Rule without squandering any time, lest when the Rule is discharged the victim of the offence is denied justice because of the delay due to issuance of the Rule by this Court. Engineer Sirajul Islam and another -Vs.- The State and another (Criminal) 2019 ALR (HCD) Online 230 ....View Full Judgment

The Negotiable Instruments Act, 1881 [XXVI of 1881]
Sections 138 and 140 read with
Code of Criminal Procedure [V of 1898]
Section 561A
An offence under section 138 of the Negotiable Instrument Act is committed if the cheque is dishonoured, so a criminal proceeding under section 138 can be proceeded independently of the civil suit. The High Court Division held that admittedly the bank filed Artharin suit against the present petitioner for huge amount and as per the case of the Rule petitioner the said suit was decreed for taka more than 11,00,00000/- (eleven crore) whereas the case in question under section 138 of the Negotiable Instrument Act is only for 10,00,000/-(ten lacs).There is nothing be-fore us to show that the transaction is same. However, the main grievance of the Rule petitioner is that since the bank has already filed a case for realization of money, the bank cannot file a case under section 138 of the Negotiable Instrument Act against the petitioner and the continuation of the proceeding under section 138 is nothing but the abuse of the process of the Court. But the law is settled now, that in the case of Manjur Alam Vs. State 55 DLR (AD) page 62 it has been held by the Appellate Division that an offence under section 138 of the Negotiable Instrument Act is committed if the cheque is dishonoured, so a criminal proceeding under section 138 can be proceeded independently of the civil suit. The same view appears to have been taken in the case of Khandaker Mahbub Uddin Vs. State 49 DLR page 132.In the suit case this Division held that there is nothing in law precluding a criminal case on acount of civil suit pending against the petitioner on the same fact, the criminal case stand for the offence while the civil suit is for realization of money and both can stand together. Having regards to the above decision of this Court the High Court Division finds it difficult to discover any case in support of the Rule petitioner. As such, the High Court Division finds no merit in the Rule. In the result, the Rule is discharged. Md. Sirajul Islam. -Vs- The State. (Criminal) 2019 ALR (HCD) Online 172 ....View Full Judgment