Code of Criminal Procedure, 1898

Code of Criminal Procedure, 1898 Schedule II Col. 4— Since the offence in question is punishable with imprisonment up to five years there is no illegality in passing an order of issuance of warrant of arrest against the accused persons. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.


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.


Sections 1(2) & 417(1)—Appeal filed under section 417(2) CrPC against the judgment and order of acquittal passed by a Special Tribunal is not maintainable—An appeal against a judgment of Special Tribunal will have to be filed under section 30—i) of the Special Powers Act—The Code of Criminal Procedure shall not affect any special forum of procedure prescribed by any law. State vs Wanur Rahman 40 DLR 346.


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.


Sections 1(2) & 417(1) Appeal filed under section 417(2) CrPC against the judgment and order of acquittal passed by a Special Tribunal is not maintainable An appeal against a judgment of Special Tribunal will have to be filed under section 30-1) of the Special Powers Act The Code of Criminal Procedure shall not affect any special forum of procedure prescribed by any law. State vs Wanur Rahman 40 DLR 346.


Section 2- The order passed by the Ses- sions Judge taking cognizance in revision from naraji petition has no support of law as it is the duty of the Magistrate to take cognisance of the case and by the impugned order, the Sessions Judge usurped the jurisdiction of the Magistrate which the law does not permit him to do. Abdul Aziz Master vs State 59 DLR 468.


Section 2-The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigation within the specified period. Amalen- du Majumder vs State 49 DLR 204.


Sections 2(h) & 200-The term 'naraji means disapproval of the Final Report True. It may either challenge the report on certain grounds and pray for its rejection or may pray for further action by the Court and rejection of the report by reiterating the allegations made in the petition of complaint. When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence. The action upon the naraji petition by the Court depends on whether the naraji petition is made before or after the order of discharge has been passed by the Magistrate. If it is filed after an order of discharge it will in all probability be treated as a complaint by the Magistrate as in almost all such cases it will contain allegation of offence and the person filing the naraji petition will be examined by the Magistrate as a complain- ant under section 200 of the Code of Criminal Procedure. In case of discharge by the Magistrate the only course remaining open to the complain- ant is by way of approaching the Sessions Judge with an application for further investigation. But if the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the com- plainant, as he thinks fit. Abu Bakar vs State 46 DLR 684.


Section 2—The order passed by the Sessions Judge taking cognizance in revision from naraji petition has no support of law as it is the duty of the Magistrate to take cognisance of the case and by the impugned order, the Sessions Judge usurped the jurisdiction of the Magistrate which the law does not permit him to do. Abdul Aziz Master vs State 59 DLR 468.


Section 2—The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigation within the specified period. Amalendu Majumder vs State 49 DLR 204.


Sections 2(h) & 200—The term ‘naraji’ means disapproval of the Final Report True. It may either challenge the report on certain grounds and pray for its rejection or may pray for further action by the Court and rejection of the report by reiterating the allegations made in the petition of complaint. When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence. The action upon the naraji petition by the Court depends on whether the naraji petition is made before or after the order of discharge has been passed by the Magistrate. If it is filed after an order of discharge it will in all probability be treated as a complaint by the Magistrate as in almost all such cases it will contain allegation of offence and the person filing the naraji petition will be examined by the Magistrate as a complainant under section 200 of the Code of Criminal Procedure. In case of discharge by the Magistrate the only course remaining open to the complainant is by way of approaching the Sessions Judge with an application for further investigation. But if the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the complainant, as he thinks fit. Abu Bakar vs State 46 DLR 684.


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.


Sections 4(1) and 167—The provisions intend to prevent any possible abuse by the police officer of his power while trying to make discovery of crime by means of wrongful confinement and do not intend to protect illegal act of the police officer. Saifuzzaman vs State 56 DLR 324.


Section 4(h)—Definition of expression “Complaint”—whether a Special Judge can be said to have taken cognizance on a complaint after it is taken cognizance of and then sent to him by the Magistrate. The expression “complaint” has been defined in section 4(h) of the Code of Criminal Procedure. It is defined there to mean an allegation made in writing or verbally to a Magistrate. Therefore, a complaint made orally or in writing to a Magistrate would be a complaint and when the Magistrate would be sending that complaint to the Special Judge along with the deposition of the witnesses and his comments for the deposition of the witnesses and his comments for the Special Judge to take cognizance and if that cognizance is taken again it could not be said that the Special Judge had not taken cognizance on a complaint. Matiur Rahman vs State 40 DLR 385.


Sections 4(b), 195(1)(c) & 417A(2)—The word “complainant” occurring in section 417A(2) must be extended upto the “aggrieved person” otherwise legislation so far it relates to a proceeding under section 195(1) of the Code will be of no avail. The aggrieved person at whose instance complaint petition was filed by the Magistrate under section 195(l)(c) is to be considered as a “complainant” as required under section 417A(2) with the aid of definition of complaint appearing in section 4(h) though not for all other purposes. Abdul Ahad vs State 58 DLR 311.


Section- 4(K)(L)-Inquiry and Investigation-Inquiry is always to be made by a Magistrate or any person as may be directed by the Court, whereas, the investigation has to be made by a Police Officer or by a person (other than a Magistrate) who is authorized by Magistrate in this behalf. To investigate into a cognizable offence, no order of a Magistrate is necessary. Investigation is totally a different concept from that of inquiry. State vs Secretary, Ministry of Public Administration, 67 DLR (AD) 271


Section 4(1)(q)- The meaning assigned to the word "public" strongly indicates that a parti- cular case may also be tried in a place other than the normal place where the sitting of the Court of Sessions takes place. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157. Sections 4(1) and 167-The provisions intend to prevent any possible abuse by the police officer of his power while trying to make discovery of crime by means of wrongful confinement and do not intend to protect illegal act of the police officer. Saifuzzaman vs State 56 DLR 324. Section 4(h)-Definition of expression "Complaint" whether a Special Judge can be said to have taken cognizance on a complaint after it is taken cognizance of and then sent to him by the Magistrate. The expression "complaint" has been defined in section 4(h) of the Code of Criminal Procedure. It is defined there to mean an allegation made in writing or verbally to a Magis- trate. Therefore, a complaint made orally or in writing to a Magistrate would be a complaint and when the Magistrate would be sending that com- plaint to the Special Judge along with the depo- sition of the witnesses and his comments for the deposition of the witnesses and his comments for the Special Judge to take cognizance and if that cognizance is taken again it could not be said that the Special Judge had not taken cognizance on a complaint. Matiur Rahman vs State 40 DLR 385. Sections 4(h), 195(1)(c) & 417A(2)-The word "complainant" occurring in section 417A(2) must be extended upto the "aggrieved person" otherwise legislation so far it relates to a procee- ding under section 195(1) of the Code will be of no avail. The aggrieved person at whose instance complaint petition was filed by the Magistrate under section 195(1)(c) is to be considered as a "complainant" as required under section 417A(2) with the aid of definition of complaint appearing in section 4(h) though not for all other purposes. Abdul Ahad vs State 58 DLR 311.


Section 5(1)(kha)- Government may in exercise of its power under section 5(1)(kha) of the Act 42 of 1992 has the option to revive the investigation. Sohrab Ali Dewan vs State, 64 DLR 106


Section 5(2)-Section 5(2) of the Code itself expressly has ousted its jurisdiction where special procedure has been prescribed in the special law itself. (PER M ENAYETUR RAHIM JAGREEING WITH MD FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41


Section 5(2)-Ain of 2004 has given exclusive power to the Commission to conduct it's cases including appeals in exercise of powers under section 5(2) of the Code read with sections 17, 18 and 33 of the Ain, 2004. Commission is a necessary party in appeals to be filed by the convicts and that the Commission through its prosecution unit has exclusive power to defend the judgments passed by a Special Judges in appeals pending in the High Court Division by accused-persons. Anti- Corruption Commission vs Monjur Morshed Khan, 64 DLR (AD) 124


Section 5(2)- Where offence is one under a special or local law but there is no enactment prescribing any procedure for dealing with the offence, the provisions of the Code shall be followed for such offence. Where a special law creating offences provided a special procedure for dealing with them, the provisions of the Code shall not apply in such cases. Where no such procedure has been provided for, the normal procedure in the Code shall be applicable. The Commission Ain contains complete procedure for inquiry, investi- gation, institution of cases and conducting such cases and there fore; the Code would have no application for the purpose of conducting cases instituted by the Commission. ACC vs Monjur Morshed Khan, 64 DLR (AD) 124


Section 5(2)- Section 5(2) of the Code itself expressly has ousted jurisdiction when special procedure has been prescribed in the special law itself. (PER M ENAYETUR RAHIM J) Mafruza Sultana va State, 66 DLR 280


Section 5—The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution, the word “law” means any Act, Ordinance, etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36.


Sections 5(2) and 167(5)—The powers conferred under the general provisions of the Code are subject to any special provisions enacted under the Special Powers Act. The Special Powers Act having made provisions with regard to the offence in question must be deemed to supersede the provisions of the Code. Taslima Begum vs State 42 DLR 136.


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.


Code of Criminal Procedure, 1898 (V of 1898) S. 5(2)-Section 5(2) of the Code itself expressly has ousted its jurisdiction where special procedure has been prescribed in the special law itself.(Per M Enayetur Rahim J agreeing with Md Faruque J). Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41


Code of Criminal Procedure, 1898 Section 5(2)- The Depository Act is n 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, [6 LM (AD) 78]


Section 5-The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution, the word "law" means any Act, Ordinance, etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36. Sections 5(2) and 167(5)-The powers conferred under the general provisions of the Code are subject to any special provisions enacted under the Special Powers Act. The Special Powers Act having made provisions with regard to the offence in question must be deemed to supersede the provisions of the Code. Taslima Begum vs State 42 DLR 136. Sections 5(2) & 339D-Where the charge has been framed under section 409 of the Penal Code and section 5(2) of Act II of 1947, and in the absence of any provision for revival of the case on the expiry of the period of 2 years provided in section 8(a) of the Criminal Law Amendment (Amendment) Act there was no legal authority to revive the case under the provision of the Code of Criminal Procedure. Nur Israil Talukder vs State 52 DLR (AD) 51.


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.


Sections 6 & 7—The new Act has effected a change in the procedural law but it has not affected any vested right of the accused and the prosecution, because the accused had not, in fact, any absolute and vested right of stoppage and release. In that view of the matter it cannot be said that the appellant had any vested right under the old provision of sub-section (4) of section 339C to be released on the proceeding being stopped. The effect of repeal of the old provision followed by its reenactment will be that in the pending cases the new procedural law will apply because as a general rule alterations in the form of procedure are retrospective in character unless there is some contrary provision in the enactment. In our considered opinion the provision of sub-section (4) of section 339C of the Code of Criminal Procedure as amended by Act No. XLII of 1992 will be applicable to the pending cases. Abdul Wadud vs State 48 DLR (AD) 6.


Section 9- No person shall be appointed a Special Judge unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. A Sessions Judge, an Additional Sessions Judge and an Assistant Sessions Judge are the officers to compose of a Sessions Division. A Sessions Judge in a Sessions Division is appointed under section 9 of the Code and he being the senior most judicial officers of the Sessions Division transfers the cases to Additional Sessions Judges or any other Judges for holding trial of cases as Special Judges of the Sessions Division. Anti-Corruption Commission, Dhaka vs Abdul Azim, 69 DLR (AD) 208


Sections 9, 17, 408 & 409—Admission of appeal or revision do not fall in the category of urgent application as mentioned in sub-section (4) of section 17 of the Code. When provisions of sections 9, 17,, 408 and 409 of the Code are considered together, it is clear to me that a Sessions Judge-in-charge cannot admit an appeal. Ibrahim Khalil vs State 50 DLR 192.


Section 9(2)—The order that was passed was absolutely without jurisdiction inasmuch as the place where it was passed was not a Court of Sessions Judge as contemplated under section 9(2) of the Code of Criminal Procedure. HM Ershad [former President Lieutenant General (Retd)] vs State 48 DLR 95.


Section 9(2)-A special order cannot be restricted to mean a particular situation according to a pre set formula. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.


Section 9(2)—Section 9(2) gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.


Section 9(2)—The contention that a Court of Sessions cannot have two sitting places is negatived by the very language of the section itself. Sayeed Farook Rahman vs Session Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.


Section 9(2)-If there is a special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of the Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Sayeed Farook Rahman vs Sessions Judge, 49 DLR (AD) 157.


Section 9(3), Proviso—Interpretation of statute—A proviso is subservient to the main provision—It is not an enacting clause independent of the main enactment. Our view is that a proviso cannot possibly deal with an entirely different topic or subject and it is subservient to the main provision. A proviso must be considered in relation to the principal matter to which it stands as a proviso. To treat the proviso as if it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, LJ in RV Dibdin, (1910) (Prob Dn) 57. The same view has been expressed in Corpus Juris Sedondum Vol. 82 (pp. 887-88) Nurul Huda vs Baharuddin 41 DLR 395.


Sections 9(3), Proviso and 28—Canon of construction of provisos—Jurisdiction occurring in sub-section (3) of section 9 is limited to trial jurisdiction if read with section 28. Applying the afore-quoted well-known canon of construction of provisos, we may now say that Assistant Sessions Judges who shall be deemed to have been appointed as Additional Sessions Judges will carry their appointment for the exact purpose set out in the main sub-section, namely, to exercise jurisdiction in one or more such Courts”, that is, in the Courts of Session. Read with section 28, contained in the same Part II, the “jurisdiction” referred to in sub-section (3) of section 9 is limited to the trial jurisdiction. Hence the Assistant Sessions Judges deemed to be appointed as Additional Sessions Judges under the proviso to sub-section (3) shall exercise only trial jurisdiction as Additional Sessions Judges and nothing else. Part II of the Code does not control or government Part VII of the Code titled “Of Appeal, Reference and Revision.” Nurul Huda vs Baharuddin 41 DLR 395.


Section 9(3), Proviso and 31(4)—Distinction between Court of Sessions and Sessions Judge—Court of Sessions is a Court and the Sessions Judge is an office. Nurul Huda vs Baharuddin 41 DLR 395.


Sections 9(3), Proviso and 31(4)—Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge does not acquire the status of an Additional Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.


Sections 9(3), 29C and 31(4)—Consequence of change brought in sections 29C and 31(4) àf the Code of Criminal Procedure—An Assistant Sessions Judge deemed to be an Additional Sessions Judge shall not be deemed to be an Additional Judge for all purposes under the Code, namely for hearing appeals revisions references and reviews if they are made over and transferred to him by Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.


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.


Sections 9, 17, 408 & 409-Admission of appeal or revision do not fall in the category of urgent application as mentioned in sub-section (4) of section 17 of the Code. When provisions of sections 9, 17, 408 and 409 of the Code are consi- dered together, it is clear to me that a Sessions Judge-in-charge cannot admit an appeal. Ibrahim Khalil vs State 50 DLR 192.


Section 9(2)- The order that was passed was absolutely without jurisdiction inasmuch as the place where it was passed was not a Court of Ses- sions Judge as contemplated under section 9(2) of the Code of Criminal Procedure. HM Ershad [former President Lieutenant General (Retd) vs State 48 DLR 95.


Section 9(2)-A special order cannot be restricted to mean a particular situation according to a pre set formula. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.


Section 9(2)- Section 9(2) gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.


Section 9(2)- The contention that a Court of Sessions cannot have two sitting places is negatived by the very language of the section itself. Sayeed Farook Rahman vs Session Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.


Section 9(2)- If there is a special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of the Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Sayeed Farook Rahman vs Sessions Judge, 49 DLR (AD) 157.


Section 9(3)- Proviso-Interpretation of statute-A proviso is subservient to the main pro- vision-It is not an enacting clause independent of the main enactment. Our view is that a proviso cannot possibly deal with an entirely different topic or subject and it is subservient to the main provision. A proviso must be considered in relation to the principal matter to which it stands as a proviso. To treat the proviso as if it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, LJ in RV Dibdin, (1910) (Prob Dn) 57. The same view has been expressed in Corpus Juris Secondum, Vol. 82 (pp. 887-88) Nurul Huda vs Baharuddin 41 DLR 395.


Sections 9(3), Proviso and 28-Canon of construction of provisos Jurisdiction occurring in sub-section (3) of section 9 is limited to trial jurisdiction if read with section 28. Applying the aforequoted well-known canon of construction of provisos, we may now say that Assistant Sessions Judges who shall be deemed to have been appointed as Additional Sessions Judges will carry their appointment for the exact purpose set out in the main sub-section, namely, to exercise jurisdiction in one or more such Courts", that is, in the Courts of Session. Read with section 28, contained in the same Part II, the "jurisdic- tion" referred to in sub-section (3) of section 9 is limited to the trial jurisdiction. Hence the Assistant Sessions Judges deemed to be appointed as Additional Sessions Judges under the proviso to sub-section (3) shall exercise only trial jurisdic- tion as Additional Sessions Judges and nothing else. Part II of the Code does not control or government Part VII of the Code titled " Of Appeal, Reference and Revision." Nurul Huda vs Baharuddin 41 DLR 395.


Section 9(3), Proviso and 31(4)-Dis- tinction between Court of Sessions and Sessions Judge Court of Sessions is a Court and the Sessions Judge is an office. Nurul Huda vs Baharuddin 41 DLR 395.


Sections 9(3), Proviso and 31(4)-Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge does not acquire the status of an Additional Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.


Sections 9(3), 29C and 31(4)-Consequence of change brought in sections 29C and 31(4) of the Code of Criminal Procedure An Assistant Sessions Judge deemed to be an Additional Sessions Judge shall not be deemed to be an Additional Judge for all purposes under the Code, namely, for hearing appeals, revisions, references and reviews if they are made over and transferred to him by Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.


Sections 9(3), 29C, 31(4), 409-An Assis- tant Sessions Judge deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, e.g. for hearing appeals, revisions, reference and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abul Kashem vs State 43 DLR (AD) 77.


Sections 10, 18, 20 & 21— A close look into section 4 of the said Ordinances vis-a-vis sections 10, 18, 20 and 21 of the Code, it would appear that in a Metropolitan Area some of the powers which were dealt with by the District Magistrate, have been given to the Police Commissioner, and some of them have been given to the Chief Metropolitan Magistrates and Metropolitan Magistrates, debarring the District Magistrate to exercise all or any of the powers which could be exercised by him before the promulgation of the said Ordinances and the amendments made in the Code and the Special Powers Act. Anwar Hossain vs State 55 DLR 643.


Section 17A- Section 17A of the Code clearly has empowered a Sessions Judge to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or given special order consistent with the Code. Mahmudur Rahman Nazlu vs State, 64 DLR 179


Sections 18 and 167(7)- The Additional District Magistrate, Mymensingh had the jurisdiction to pass order for revival of the investigation within six months of the release of the accused. Faziul Hoque vs State 41 DLR 477.


Section 26— The statutory provisions recognise the Rule against double jeopardy and the principle of res judicata should apply to criminal proceedings in the same way as to civil proceedings but there being no conviction in the cases under reference, the principle of double jeopardy does not apply. Parveen vs State 51 DLR 473.


Sections 28 and 29(2)— An offence under section 382 of the Penal Code (XLV of 1860) is triable by Court of Sessions as per Column Eight of the Schedule. Karim Dad vs Abul Hossain 40 DLR 441.


Section 29— Labour Court and a Magistrate, 1st Class, having jurisdiction in the relevant matter, shall have concurrent jurisdiction to try an offence punishable under the Industrial Relations Ordinance. Under section 64 of the Ordinance a Magistrate, 1St Class, has also been invested with power to try ‘any offence under this Ordinance. The decision reported in 1985 BLD (AD) 278 is not applicable in the facts of the present case. Kamaluddin Chowdhury vs Mashiudowllah 43 DLR 137.


Section 30— A statement that contains self- exculpatory matter cannot amount to confession, if the exculpatory statement is of some facts which if proved would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms of the offence or, at any rate, substantially all the facts which constituted the offence. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.


Section 31 Section 31—Question of sentence to be imposed on the accused after conviction. Although it is a matter of discretion of the trial Court interference by the appellate Court will be justified when trial Court fails to impose proper sentence. Santosh Mia vs State 42 DLR 171.


Section 31—Sentence increased from 2 years to 5 years because of the appellant’s being a member of the law enforcing agency and the heinousness of the crime. Santosh Mia vs State 42 DLR 171.


Section 31—A sentence must not be lenient vis-a-vis the nature of the offence committed and at the same time it must not be harsh either, so that the offender is sent to a point of no return turning him vindictive to the society. HM Ershad vs State 53 DLR 102.


Section 31—Sentence is essentially a matter of judicial discretion but it must be commensurate with the gravity of the offence. The appellants have already lost their jobs and they have undergone the sustained spectre of the jail for a pretty long time by which they may be deemed to have purged their sins to a considerable extent and the same may be considered a mitigating circumstance for taking a lenient view in the matter of sentence. Abdur Rouf vs State 51 DLR 192.


Section 31—The trial Courts while awarding sentence must bear in mind that the sentence to be imposed upon the accused must be commensurate with the gravity of the offence. Nurul Alam Chowdhury vs State 51 DLR 125.


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.


Section 33 Section 33—The term of imprisonment which can be legally awarded in default of payment of fine is not to exceed one-fourth of the maximum term of imprisonment fixed for the offence (Ref: 2 PLD 23 BJ). 6 DLR 488 Abdul Hakim Bhuiyan Vs. Golabdi জরিমানা অনাদায়ে আইনগতভাবে প্রদত্ত কারাদন্ডের মেয়াদ অপরাধটির জন্য নির্ধারিত সর্বোচ্চ কারাদন্ডের এক চতুর্থাংশের অধিক নয়। 6 DLR 488 Abdul Hakim Bhuiyan Vs. Golabdi


Section 33— In default of payment of fine proper course is to impose simple imprisonment (Ref: 21 DLR 46 WP). 26 DLR 350 Nizamuddin Meah Vs. The State জরিমানা অনাদায়ে উপযুক্ত শাস্তি হচ্ছে বিনাশ্রম কারাদণ্ড দেয়া (Ref: 21 DLR 46 WP)। 26 DLR 350 Nizamuddin Meah Vs. The State


Section 33— The Section governs both the cases where the offence is punishable with imprisonment and fine as well as where the offence is punishable with fine only. Maximum imprisonment in default of payment of fine is six months simple imprisonment (Ref: 5 BCR 266 AD; 5 BLD 166). 37 DLR 91 (AD) The State Vs. Abul Kashem যে ক্ষেত্রে অর্থদন্ড যোগ্য এবং যেক্ষেত্রে অপরাধটি কেবলমাত্র অর্থদন্ডের শাস্তিযোগ্য, সেক্ষেত্রে উভয় বিষয় ৩৩ ধারা দ্বারা নিয়ন্ত্রিত হবে। জরিমানা অনাদায়ে সর্বোচ্চ কারাদন্ড হচ্ছে ৬ মাসের বিনাশ্রম কারাদণ্ড (Ref: 5 BCR 266 AD; 5 BLD 166)। 37 DLR 91 (AD) The State Vs. Abul Kashem


Section 35—Since both the condemned prisoners are sentenced to imprisonment for life there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. State vs Hamida Khatun 50 DLR 517.


In the absence of evidence to prove that stolen goods were received by the accused at different times, three separate convictions and sentences cannot be legally sustained (Ref: 9 PLD 801 Karachi). 7 DLR 184 (FC) Rafiquddin Vs. The Crown চুরি যাওয়া দ্রব্যাদি যে বিভিন্ন সময় অভিযুক্ত ব্যক্তির দ্বারা গৃহীত হয়েছে এইরূপ প্রমাণ করার মতো সাক্ষ্য না থাকলে আলাদা আলাদা ভাবে প্রদত্ত ৩টি দন্ডাদেশ আইনগতভাবে বহাল থাকতে পারে না (Ref: 9 PLD 801 Karachi)। 7 DLR 184 (FC) Rafiquddin Vs. The Crown


Since both the condemned prisoners are sentenced to imprisonment for life, there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. 50 DLR 517 The State Vs. Hamida Khatun and another


যেহেতু উভয় দন্ডপ্রাপ্ত কয়েদীকে যাবজ্জীবন কারাদন্ডে দন্ডিত করা হয়েছে সেহেতু দন্ডবিধির ২০১ ধারায় তাদের বিরুদ্ধে আলাদা দন্ড দেওয়ার প্রয়োজন নাই। 50 DLR 517 The State Vs. Hamida Khatun and another


Changes in procedural law have retrospective effect unless contrary intention is expressed. Trial cannot be said to commence unless the substance of accusation is stated to the accused. A case becomes a pending case as soon as cognizance is taken, but trial cannot be said to be pending unless it has commenced, and it cannot commence unless a charge is framed. 8 BLD 270 Ruhul Amin Vs. The State ভিন্ন ইচ্ছা প্রকাশ করা না হলে বিধিবদ্ধ আইনে সাধিত মূল বা পদ্ধতিগত আইনের ভূতাপেক্ষ কার্যকারিতা (retrospective effect) থাকবে। অভিযোগের সারমর্ম অভিযুক্তের নিকট বলা না হলে বিচার শুরু হয়েছে বলা যাবে না। আমল নেয়ামাত্র একটি মামলা নিষ্পন্নাধীন মামলায় পরিণত হয়। বিচার শুরু না হলে উহা নিষ্পন্নাধীন আছে বলা যায় না এবং চার্জ গঠন করা না হলে বিচার শুরু হতে পারে না। 8 BLD 270 Ruhul Amin Vs. The State


Section 35A—On a plain reading of the provision of section 35A, sub-section (1) and consequences thereof appearing in sub-section (2) with the preamble and section 29 of the Act and on consideration of the submissions made by the Attorney-General, the Court holds that provision of section 35A is quite consistent with the scheme of the Act and it will apply to the proceeding of the Act. Hazrat Ali vs State 59 DLR 496.


The proviso of the section provides that deduction from the sentence cannot be allowed when the minimum period of sentence is provided in the law (Ref: 8 BLT (HC) 119). 20 BLD 177 (HC) Habibur Rahman Alias Raju Vs. The State


এই ধারার অনুশর্তে বলা হয়েছে যে, আইনে সর্বনিম্ন দন্ড দেয়ার বিধান থাকলে দন্ড হ্রাস করার অনুমতি দেয়া যাবে না (Ref: 8 BLT (HC) 119)। 20 BLD 177 (HC) Habibur Rahman Alias Raju Vs. The State


Reduction from the sentence awarded for the period an accused had remained in custody before conviction cannot be allowed when the minimum punishment has been imposed. 7 BLC 162 (HC) Habibur Rahman Vs. The State (Criminal) শাস্তির পরিমাণ সর্বনিম্ন হলে দন্ড দেয়ার পূর্বে যে সময় পর্যন্ত অভিযুক্ত ব্যক্তি হেফাজতে ছিল, ঐ সময় প্রদত্ত দন্ডের মেয়াদ থেকে হ্রাস করার অনুমতি দেয়া যাবে না। 7 BLC 162 (HC) Habibur Rahman Vs. The State (Criminal)


Section 35(d)- Transitory Provisions, pur- pose of Investigation pending immediately before commencement of the Ordinance-Magis- trate did not accept the Final Report and directed further investigation-Police on further investiga- tion 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-respon- dents, whether entitled to be released-Provision in section 35(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion-Investigation on which the Police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7) Consequently the charge-sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.


Sections 35A & 401- 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, [3 LM (AD) 513]


Code of Criminal Procedure [V of 1898] Section 35A read with Penal Code [XLV of 1860] Section 302 read with Nari-0-Shishu Nijatan Daman (Bishesh Bidhan) Ain [XVIII of 1995] Section 10(1) So far the findings relating to demand of dowry by the petitioner from the father of deceased Aklima has not been established by any reliable evidence and as such the Appellate Division is unable to agree with the same. Accordingly the judgment and order of conviction and sentence passed under section 10(1) of Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 1995 is liable to be set aside and the petitioner is convicted and sentenced under section 302 of the Penal Code. The judgment and order passed by the Appellate Division in Jail Petition No. 8 of 2010 preferred by petitioner Raju Ahmed @ Raja Mia is reviewed and set aside. His order of conviction and sentence of death under section 10(1) of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 is set aside. However, he is convicted under section 302 of the Penal Code and sentenced to suffer imprisonment for life and also to pay a fine of Tk. 1,000/- (one thousand) in default, to suffer rigorous imprisonment for 01 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence and other remission as admissible under the Jail Code. ...26 [31 ALR (AD) (2024) 18]


Section 35A—The inclusion of section 35A in the Code of Criminal Procedure was intended to deduct the period of custody from the total imprisonment. There is no provision in section 35A that such benefit will be applicable only in case of convict triable under the Penal Code. The intention of inclusion of 35A is to give benefit to all classes of convicts including the convict tried under the Special Powers Act. Nur Hossen Md vs State 60 DLR 363.


Section 35A—The offence committed by the accused, found aggressive with the intention of committing murder, is a culpable homicide not amounting to murder falling within exception No. 1 of section 300, Penal Code considering the state of his mind and it is a punishable offence under section 304 part—I of the Penal Code. Abdul Mazid vs State 58 DLR 355.


Section 35A—It is apparent that the provisions of the Code are applicable to a special law if a specific provision has been made to that effect either in the special law itself or in the Code. In this connection the decision in the case of Gahena vs State reported in 20 DLR (WP) 271 is relevant. Hiru Mia vs State 58 DLR 607.


Section 35A-An accused is entitled to deduction of the actual period during which he was in custody prior to passing of his sentence from his sentence of imprisonment for life. (PER SYED MAHMUD HOSSAIN, CJ). Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


Section 35A-Whereas the benefits by way of remission, commutation, pardon etc. are discretionary, the benefit of deduction under section 35A of the Code is mandatory. The grant of benefits by way of remission etc. under the Jail Code and the Code of Criminal Procedure are not within the function of the Court, whereas the deduction mentioned under section 35A is a duty imposed squarely upon the Court. (PER MUHAMMAD IMMAN ALI, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


Section 35A-Imprisonment for life prima- facie means imprisonment for the whole of the remaining period of convicts natural life. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code. In the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code. (PER HASAN FOEZ SIDDIQUE, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


Section 35A-Under section 35A of the Code power has been vested in the Court to deduct the period of incarceration undergone by the convict prior to passing of the verdict of sentence from the total period of sentence awarded. (PER SYED MAHMUD HOSSAIN, CJ) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


Section 35A-When any convict is sentenced to imprisonment for life it shall be the duty of the Court to deduct the period spent in custody before his conviction from the sentence awarded. There can be no doubt that the provision is mandatory. Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


Section 35A-In the most serious cases, a whole life order can be imposed, meaning life does mean life in those cases. In those cases leniency to the offenders would amount to injustice to the society. In those cases, the prisoner will not be eligible for release at any time. The circumstances which are required to be considered for taking such decision are surroundings of the crimes itself background of the accused; conduct of the accused; his future dangerousness; motive; manner and magnitude of crime. (PER HASAN FOEZ SIDDIQUE, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


Section 35A-The legislature knowing full well did not give the benefit of the discretionary power of the Court under section 35A to a person sentenced to imprisonment for life by the un- amended provision. The legislature keeping in mind about the original section substituted section 35A where it has been stated that the benefit of section 35A will not be available in the case of an offence punishable only with death. This subs- tituted section 35A also allowed the Court to deduct the sentence from the sentence of impri- sonment for life the total period during which the accused was in custody in connection with that offence. By using the words 'except' and 'only' in section 35A the legislature intended to give the benefit of section 35A to the accused who have been sentenced to imprisonment for life also. (PER SYED MAHMUD HOSSAIN, CJ) Ataur Mridha alias Ataur vs State (Criminal), 73 DLR (AD) 298


Section 35A-There is no scope to say that the power conferred on the Court is a discre- tionary power. The language used in amended section 35A is clear and unambiguous and that the Court cannot disregard the intention of the legislature expressed in plain language and is to deduct the period of actual detention from imprisonment for life prior to his conviction. (PER MUHAMMAD IMMAN ALI, J) Ataur Mridha alias Ataur vs State (Criminal), 73 DLR (AD) 298


Section 35A-By incorporating section 35A in the Code by the Code of Criminal Procedure (Amendment) Act, 2003 the legislature has provided the provision of deduction of imprisonment in cases where convicts may have been in custody except in the case of an offence punishable only with death. The Legislature did not use the word "only" unconsciously. The word 'only' has been used in section 35A to restrict the exception in case of an offence punishable with death. That is, in case of an offence punishable with death alone will not get the benefit of section 35A. That is, the category of offence is one which is punishable with death. In case of other clauses of offences not punishable with death, the provision of deduction of imprisonment in cases where convicts may have been in custody. (PER HASAN FOEZ SIDDIQUE, J) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


S. 35A-Provision of Section 35A is also applicable at the appellate stage. The State Vs. Farid Miah & Ors, 33 BLD (2013)-HCD-22.


Ss. 35A and 164 Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000) S 4(1) (2) (Kha) The prosecution failed to bring any other evidence poring that in order to kill Rehana, convict Md. Shamsuzzaman threw acid on her person. To convict an accused under section 4(1) of the said An of 2000 the prosecution has to prove that with an intention to kill, acid or other corrosive substance was thrown on the nerson of victim or the victim succumbed to injuries caused by acid or other corrosive substance. Thus the offence, committed by convict, appellants, does not come within the mischief of section 4(1) of the said Ain but it attracts section 4(2) (Kha) of the Ain of 2000. Accordingly, the conviction and sentence was modified and the appellants were convicted under section 4(2)(Kha)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced for rigorous imprisonment for 10 (ten) years with a fine of Tk. 20,000,00 in default to suffer imprisonment for one year more. The appellants will get benefit of section 35A, Cr.P.C. Md. Ilias Hossain and others Vs. Bangladesh and others, (Cri.Appeal), 2 LNJ (2013)-HCD-7.


Sections 35A and 401-Any remission calculated by jail authorities under the provisions of the Jail Code are to be referred to the Government for release under section 401 of the Code. But such remission recommended by the Jail authority cannot be turned down by the Government without assigning any valid reason in writing as the rules relating to remission under Chapter XXI of the Jail Code were made under the mandate of section 59(f) of the Prisons Act, 1894. In order to give a harmonious construction of sections 45 and 53 of the Penal Code, we have to read those two sections in conjunction with sections 55 and 57 of the Penal Code and section 35A of the Code and we are of the view that imprisonment for life should be reckoned to a fixed period of rigorous imprisonment. (PER SYED MAHMUD HOSSAIN, CJ) Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298


Section 35A-Section 35A of the Code is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discre- tionary power of the court. It cannot he applicable in respect of an offence which is punishable with death. Though the word 'only' is used in section 35A, the legisla- ture without considering section 401 of the Code and section 53 of the Penal Code has inserted the word 'only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the Government only. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214


Section 35A-Convict-appellant spent a considerable period in jail hajat which can be converted into custody period as per amended provision of 35A of the Code. The convict-appellant is an age old freedom fighter who has been suffering from old age complicities. Ends of justice would be met if it is ordered to award sentence, already under gone by him. AKM Mosharraf Hossain vs State, 65 DLR 564


Section 35A-The term of imprison ment would be counted under the provision laid down in section 35A of the Code. State vs Md Sukur Ali, 68 DLR 155


Sections 35A and 410-The trial Court did not deduct the total period during which the appellants had been in custody in connection with the case before conviction which was obligatory as per provision of section 35A of the Code. The period during which the appellants were in custody in connection with the case before conviction should be deducted from the awarded sentence of ten years. Jahirul Haque vs State, 64 DLR 234


Section 35A(1) Total period the appellants have been in custody before conviction in connection with offence shall be deducted from the sentence of imprison- ment awarded to them. Abdul Azid alias Azid Dacoit vs State, 66 DLR 605


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.


Section 39 read with 435-Allegation under Section 138 of the Negotiable Instrument Act, 1881 (as amended) Held: Whether the cheque in question was dishonoured for the "insufficiency of fund" or for the "dissimilarity of the signature of the drawer on the cheque as stated in the letter dated 30.08.2009 is a question of fact which can only be thrashed out during the trial. We do not see any scope of deciding such question in considering the merit of the revision application. Md. Arif-Uz-Zaman Vs. The State & Anr, 21 BLT (2013)-AD-234.


Section 41–Enhancement of sentence—Competence of the Appellate Court to enhance—The appellate Court has no jurisdiction to enhance the sentence without serving notice upon the petitioner. 8 BLD 361 Yusuf Ali Vs. The State আবেদনকারীকে নোটিশ না দিয়ে দন্ড বৃদ্ধি করার কোন এখতিয়ার আপীল আদালতের নেই। 8 BLD 361 Yusuf Ali Vs. The State


Section 42 and 561A-The provision of law imposes a legal duty upon every person aware of the commission of any offence or of the intention of any other person to commit any offence to give information thereof forthwith to the nearest Magistrate or Police Officer. The purposes of this section have been designedly made so that crimes are brought to book and not suppressed by persons knowing about them. Refusal or omission to assist any public servant when bound by law to give assistance under section is punishable offence under Section 187 of the Penal Code. Ok-Kyung Oh Vs. State, 18 BLC (2013)-HCD-621.


Duty of Public- Section 44 of the Code of Criminal Procedure imposes a legal duty upon every per- son aware of the commission or of the intention of any other person to commit any of the offences specified therein to give information thereof forthwith to the nearest Magistrate or Police Officer. Md. Shafique Miah Vs. The State, 17 BLD(AD) 284


Public to give information of certain offences—Section 44 of the Code of Criminal Procedure imposes a legal duty upon every person aware of the commission or of the intention of any other person to commit any of the offences specified therein to give information thereof forthwith to the nearest Magistrate or Police Officer. 19 BLD 284 (AD) Md. Shafique Miah Vs. The State এই ধারায় উল্লেখিত কোন একটি অপরাধ সংঘটন সম্পর্কে অথবা কোন অপরাধ সংঘটন করতে অন্য কোন ব্যক্তির অভিপ্রায় সম্পর্কে অবহিত হওয়া প্রত্যেক ব্যক্তির উপর উক্ত সংঘটন বা অভিপ্রায় সম্পর্কে সাথে সাথে নিকটতম ম্যাজিস্ট্রেট বা পুলিশ কর্মকর্তাকে তথ্য দেয়ার জন্য এই ধারা আইনগত দায়িত্ব অর্পণ করেছে। 19 BLD 284 (AD) Md. Shafique Miah Vs. The State


Section 51 SEARCH OF ARRESTED PERSONS. Issue of notice to surety without first forfeiting his bond is irregular. 17 DLR 141 (WP) Sanwan Vs. The State প্রথমে মুচলেকা বাজেয়াপ্ত না করে জামিনদারকে নোটিশ দেয়া অনিয়মিত বা আইনসম্মত নয়। 17 DLR 141 (WP) Sanwan Vs. The State


Section 54—Since the detenu was arrested under section 54 of the Code it was incumbent upon the police to produce her before a Magistrate within 24 hours but the police having not done so the right guaranteed to her under of the Constitution has been violated. Mehnaz Sakib vs Bangladesh 52 DLR 526.





Section 54—The provisions of this section shall also apply when a police officer receives any credible information that a person may be concerned in any cognizable offence or has a reasonable suspicion that a man might have com-mitted an act in any place out of Bangladesh which if committed in Bangladesh would have been punishable as an offence. Kalandiar Kabir vs Bangladesh 54 DLR 258.


Section 54-The word ‘concerned’ used in the section is a vague word which gives unhindered power to a police officer to arrest any person stating that the person arrested by him is ‘concerned’ in a cognizable offence. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Section 54-A police officer can exercise the power if he has definite knowledge of the existence of some facts and such knowledge shall be the basis of arrest without warrant. There can be knowledge of a thing only if the thing exists. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Section 54-If a person is arrested on the basis of credible information nature of the information, source of information must be disclosed by the police officer and also the reason why he believed the information. Bangladesh Legal Aid & Services Trust vs Bangladesh 55 DLR 363.


Section 54-if a person is arrested on ‘reasonable suspicion’, the police officer must record the reasons on which his suspicion is based. If the police officer justifies the arrest only by saying that the person is suspected to be involved in a cognizable offence, such general statement cannot justify the arrest. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Section 54-The power given to the police officer under this Section to a large extent is inconsistent with the provisions of Part Ill of the Constitution. In view of this position such inconsistency is liable to be removed. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Section 54-The very system of taking an accused on ‘remand’ for the purpose of interrogation and extortion of information by application of force is totally against the spirit and explicit provisions of the Constitution. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Section 54-If the right to be informed of his grounds for arrest and the right to consult a legal practitioner are denied this will amount to confining him in custody beyond the authority of the Constitution. So some amendments in Section 54 are needed so that the provisions of this Section are made consistent with the provisions of Part III of the Constitution. Bangladesh Legal Aid and Services Trust vs Bangladesh 55 DLR 363.


Section 54-Police officer cannot arrest a person under Section 54 of the Code with a view to detain him under the Special Powers Act. Such arrest is neither lawful nor permissible under Section 54. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Section 54—The “reasonable suspicion” and “credible information” must relate to definite averments considered by the police officer himself before arresting a person under this provision. What is a “reasonable suspicion” must depend upon the circumstances of each particular case, but it should be at least founded on some definite fact tending, to throw suspicion on the person arrested and not on a mere vague surmise. Saifuzzaman vs State 56 DLR 324.


Section 54—A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to credible information. Saifuzzaman vs State 56 DLR 324.


Section 54—The authority made the orders of detention the moment the police officer made proposal for detention after arrest under Section 54 of the Code. This shows the report of the police officer replaced the “satisfaction” of the authority in making an order of detention. It is beyond the scheme of the law that an order of detention can be made in respect of a person on the basis of a report of the police officer after his arrest under Section 54 of the Code. Saifuzzaman vs State 56 DLR 324.


Section 54-First information report—It can be used for the purpose of testing the truth of the prosecution story and the Court may note any departure therefrom. State vs Billal Hossain Gazi 56 DLR 355.


Sections 54, 161, 163 & 167—It is not understandable how a police officer or a Magistrate allowing ‘remand’ can act in violation of the Constitution and provisions of other laws including this Code and can legalise the practice of ‘remand’. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Sections 54 and 167—This Court, in exercise of its power of judicial review when finds that fundamental rights of an individual has been infringed by colourable exercise of power by the police under Section 54 or 167 of the Code, the Court is competent to award compensation for the wrong done. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.


Sections 54 and 167—Provisions of these Sections are to some extent inconsistent with the provisions of the Constitution—To remove the inconsistencies some recommendations as given herein are needed. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363. Sections 54 and 167—”State terrorism”— There are complaints of indiscriminate arrest of innocent persons who are subjected to third degree methods with a view to extracting confessions. This is termed by the Supreme Court of India as “state terrorism” which is no answer to combat terrorism. Saifuzzaman vs State 56 DLR 324.


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 made Division some recommendations to amend Sections 54, 167 of the Code and other provisions. Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]


Sections 54 and 167- The first question to be considered is whether the High Court Division has illegally presumed the misuse of power by the police while using the power under Sections 54 and 167 of the Code. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274]


Section-54, 60, 61, 167 and 176- Sections 54, 60, 61, 167 and 176 of the Code are relevant for our consideration which read as follows: "54.(1) Any police-officer may, without an order from a Magistrate and without a warrant,arrest- firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned, secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking: thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Government, fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; fifthly, any person who obstructs a police- officer while in the execution of his duty. or who has escaped, or attempts to escape. from lawful custody; sixthly, any person reasonably suspected of being a deserter from the armed forces of Bangladesh; seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh; eighthly, any released convict committing a breach of any rule made under Section 565, sub-Section (3); ninthly, any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition...... Ministry of Law, Justice & Parl. Afrs. VS BLAST. [3 LM (AD) 274]


Section-54, 60, 61, 167 and 176- Warrants of arrest- A police officer can act under clause one only when the offence for which a person is to be arrested is a cognizable offence. Such person, must, as a fact, have been concerned in such offence or there must have been a reasonable complaint made or credible information received that he has been so concerned. If the person arrested is a child under 9 years of age, who cannot under Section 82 of the Penal Code commit an offence, the arrest is illegal. Where, a complaint is made to a police officer of the commission of a cognizable offence, but there are circumstances in the case which lead him to suspect the information, he should refrain from arresting persons of respectable position and leave the complainant to go to Magistrate and convince him that the information justifies the serious step of the issue of warrants of arrest...... Ministry of Law, Justice & Parl. Afrs. -VS- BLAST, [3 LM (AD) 274]


Section-54, 60, 61, 167 and 176- The police wide powers of arresting persons without warrant This Section gives the police wide powers of arresting persons without warrant. It is however not a matter of caprice, limited only by the police officers' own view as to what persons they may arrest without warrant. Their powers are strictly defined by the Code, and being an encroachment on the liberty of the subject, an arrest purporting to be under the Section would be illegal unless the circumstances specified in the various clauses of the Section exist. Where a police officer purported to act under a warrant which was found to be invalid and there was nothing to show that he proceeded under this Section and the arrest could not be supported under this Section. .....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274]


Section-54, 60, 61, 167 and 176-A police officer's power to arrest under this Section is discretionary- A police officer's power to arrest under this Section is discretionary and notwithstanding the existence of the conditions specified in the Section, it may be desirable in the circumstances of the particular case to simply make a report to the Magistrate instead of arresting the suspected persons. ....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, (3 LM (AD) 274]


Section 54-Section 54 was included in the Code by the colonial rulers and this provision cannot co-exist with Part III of the Constitution. A police officer should not exercise his power of arrest on the basis of his whims and caprice merely saying that he has received information of his being involved in a cognizable offence. He is required to exercise his power depending upon the nature of the information, serious- ness of the offence and the circumstance unfurled not only in the complaint but also after investigation on the basis of information or complaint. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63


Section 54-In case of arresting of a female person in exercise of this power, the police officer shall make all efforts to keep a lady constable present. If it is not possible by securing the presence of a lady constable which might impede the course of arrest or investigation, the police officer for reasons to be recorded either before arrest or immediately after the arrest by assigning lawful reasons. Bangladesh. represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63


Section 54-In clause 'Firstly' of Section 54 the words 'credible information" and 'reasonable suspicion' have been used relying upon which an arrest can be made by a police officer. These two expressions are so vague that there is chance for misuse of the power by a police officer, and a police officer while exercising such power, his satisfaction must be based upon definite facts and materials placed before him and basing upon which the officer must consider for himself before he takes any action. It will not be enough for him to arrest a person that there is likelihood of cognizable offence being committed, Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63


Section 54-Before arresting a person out of suspicion the police officer must carry out investigation on the basis of the facts and materials placed before him without unnecessary delay. If any police officer produces any suspected person in exercise of the powers conferred by this clause, the Magistrate is required to be watchful that the police officer has arrested the person following the directions and if the Magistrate finds that the police officer has abused his power, he shall at once release the accused person on bail. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63


Sections 54 and 59-If a person commits a cognizable offence in presence of a private person, the latter can arrest him under Section 59 of the Code of Criminal Procedure. A police officer may also arrest a suspected person under Section 54 of the Code if the circumstances mentioned in the Section attract the case. In exercise of these powers, a police officer or a private person may arrest the offender mentioned above, not to speak of an officer of the Commis sion. Either one can hand over the offender to the nearest police station with the money and file a case. If the police find that the offence attracts the Durnity Daman Com- mission Ain, it would intimate the Com- mission for investigation by appointing an officer. If the permission of the Commis- sion for arresting a suspected offender is made mandatory, it would be not possible for an officer of the Commission or a police officer to arrest such offender who has committed an offence under the Money Laundering Protirodh Ain, 2012 an offence that may also attract the offence under Section 27. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku vs Anti- Corruption Commission, 70 DLR (AD) 109


Sections 54 and 167-That all the recommendations are not relevant under the changed circumstances. We formulate the responsibilities of the law enforcing agencies which are basic norms for them to be observed by them at all level. We also formulate guide lines to be followed by every member of law enforcing agencies in case of arrest and detention of a person out of suspicion who is or has been suspected to have involved in a cognizable offence. In order to ensure the observance of those guide lines we also direct the Magistrates, Tribunals, Courts and Judges who have power to take cognizance of an offence as a court of original jurisdiction. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63


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. [3 LM (AD) 274]


Section 61 Section 61 of the Code states that no police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Ministry of Law, Justice & Parl. Afrs. VS BLAST, [3 LM (AD) 274]


Sections 61 & 167—An accused cannot be detained in custody of the police for a longer period than under all the circumstances of the case is reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate.


In the instant case before us, no incriminating articles, e.g. currency notes, soiled notes or stamps were recovered within the first 24 hours of arrest pursuant to any information given by accused Farook Mahajan, and so it cannot be said with an equal degree of certainty that the unlawful detention of the prisoner without any order of remand beyond 24 hours had no effect on the confession made by him. Faruque Mahajan vs State 49 DLR 47.


Sections 61 and 167—Since some incriminating articles were recovered within 24 hours of the arrest, the High Court did not find any harmful effect of the illegal detention in violation of Sections 61 and 167 of the Code on the confession made by the accused. Hasmat Ali vs State 53 DLR 169.


Sections 61 and 167—There is no evidence that the appellants were detained in police custody under an order of remand of any Magistrate and hence their such custody beyond 24 hours is unauthorised. Belal vs State 54 DLR 80.


Section 61-PW I being an officer of an elite force has violated the mandatory provision of law; after apprehending the accused without sending him to the local Police Station and lodging the FIR he confined the accused in his own custody illegally and thereafter produced him to the local Police Station after 27 hours which makes the prosecution case fatal. Dolon (Md) vs State, 64 DLR 501


Sections 61 and 167-While making an order under sub-Section (2) the Magistrate must be satisfied with the requirements of Sections 54 and 61 have been complied with otherwise the Magis- trate is not bound to forward the accused either in the judicial custody or in the police custody. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63


Sections 74 & 114(e)—Objection as to admissibility of evidence is to be taken at the first instance. In the instant case no such objection was raised against the Commissioner’s report in question which can also be relied upon as the same is an official document and was prepared in due course. Abdul Quader Chowdhury vs Sayedul Hoque 43 DLR 568.


Sections 87 & 88—The prerequisites for publication of a proclamation are the issuance of a warrant and abscondance of the accused so as to evade the execution of the warrant. Attachment under Section 88 of the Code of the property, movable or immovable, belonging to the proclaimed person can be made after the order of proclamation issued under Section 87. Maulana M A Mannan vs State 48 DLR 218.


Ss. 87 and 88-Indisputably he came up with the Writ Petition before the High Court Division and challenged the proceedings pending against him in the trial Court and secured an interim stay-order. So it cannot be said by any stretch of imagination that the accused-Ambassador was in the dark about the pendency of the case. ATM Nazimullah Chowdhury Vs. State, 65 DLR (2013)-HCD-500.


Proclamation and attachment-Under Section 87 Cr.P.C. a Magistrate is competent to publish a written proclamation requiring the accused to appear before him within a specified time when he has reason to believe that the wanted person has absconded or is concealing himself to avoid the execution of the warrant. The prerequisites for the proclamation are the issuance of an warrant and the abscondence or concealment of the accused. Attachment under Section 88 Cr.P.C. of property belonging to the proclaimed person can be made only after the order of proclamation under Section 87 Cr.P.C. has been duly made. Maulana M.A. Mannan and others Vs. The State, 15BLD(HCD)151


Sections 87, 88 & 339B(1)—Notice as to absconding accused—The notice with regard to the absconding accused was not published in two widely circulated newspapers, as required under Section 339B(1) of the Code, rather, it was published in two dailies, namely, ‘Karatoa’ and ‘Nowab’, of which the latter was hardly known and was far from being widely circulated. Although the daily ‘Nowab’ cannot be regarded as having a wide circulation, the other daily has a wide circulation. Therefore, there is substantial compliance with the provisions of Section 339B(1) of the Code since prior to such publication, the compliance with the provisions of Sections 87 and 88 of the Code of Criminal Procedure is found to have been duly complied. State vs Hamidul 61 DLR 614.


Sections 87 & 88—There is a gulf of difference between absence and abscondance— absence is not abscondance. For holding that a person is an absconder something more has to be shown. Jobaida Rashid, wife of Khondaker Abdur Rashid vs State 49 DLR 189.


Sections 87 & 88—The trial Court without taking steps or ascertaining about the compliance of Sections 87 and 88 of the Code directed publication of notice. On such facts it cannot be said that the accused was concealing himself from appearing in Court and publication of notice in news-paper and commencing the trial was in clear violation of the mandatory provision of law. So the case is sent back on remand for retrial giving opportunity to the petitioner for cross-examining the PWs already examined. Balayet Howlader vs State 49 DLR 520.


Sections 87 and 88-From a careful reading of the provisions of sub-Section (6) of Section 27 of the Act it appears that the lawmakers have consciously excluded the use of the provisions of Sections 87 and 88 of the Code in respect of trial under the Special Powers Act. Sirajul Islam vs State 55 DLR 536.


Sections 87, 88 and 339B—For compelling an absconder accused to be brought to trial coercive power under Sections 87 and 88 could be used—Section 339B added to the Code to provide for trial in absentia. This trial in absentia, needs to be held only when all attempts had failed to bring the offender to trial and not just as a matter of course of only, on police showing them in the chalan to be absconders. Lal Mia vs State 42 DLR 15


Sections 87, 339B and 537—The expression ‘in at least one news-paper’ occurring in Section 339B CrPC is mandatory and, in this view of the matter, the learned Sessions Judge ought to have condoned the delay and should not have dismissed the appeal summarily without deciding the same on merit. The order passed by the learned Sessions Judge on 19-11-1986 dismissing the appeal summarily on the ground of limitation is set aside. Moktar Ahmed vs Haji FaridAlam 42 DLR 162.


Sections 87 and 88-Indisputably he came up with the Writ Petition before the High Court Division and challenged the proceedings pending against him in the trial Court and secured an interim stay- order. So it cannot be said by any stretch of imagination that the accused-Ambassador was in the dark about the pendency of the case ATM Nazimullah Chowdhury vs State, 65 DLR 500


Section 93 Ss. 93, 31(A) and 290-An Assistant 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 higher 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 31l (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, revision, references and reviews. Tajul Islam and others Vs. Mr. Billal Hossain (Criminal), 2ALR (2013)-AD-205.


Section 94—A Court or an officer-in-charge of a police station may issue summons or a written order to the person in whose possession or power such document or thing is believed to be there, for investigation, requiring him to attend and produce it at the time or place stated in the summons or order. Abdus Satter Bhuiyan vs Deputy Commissioner, Dhaka 42 DLR 151.


Section 94—Section 94 CrPC speaks of production of any document or other thing but not of seizure by any police officer from any bank relating to bank’s account. The Sessions Judge acted illegally in passing the order according permission to seize the record from the bank’s custody. Arab Bangladesh Bank Ltd vs Md Shahiduzzaman 51 DLR 14.


Sections 94, 155 & 156—The combined effect of the provisions of Sections 94, 155 and 165 is that without an order of a competent Magistrate a police officer cannot investigate a non-cognizable case; and even if he is authorised, he has to observe the formalities as laid down in Sections 94 and 165 of the Code before he can compel the production of any document or seize any incriminating article. Humayun Majid vs Bangladesh Bureau ofAnti-Corruption 54 DLR 12.


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.


S. 94-During the course of "enquiry" by the Commission Section 94 of the Code and Sections 5 and 6 of the Bankers Book Evidence Act have no manner of application. Sonali Jute Mills Ltd. Vs. Anti-Corruption Commission (Spl. Original), 18 BLC (2013)-HCD-723.


S. 94(1)(b)-The Court has power to call for any paper or document in possession of any person, including Banking institutions, for its production before it, which s considered necessary for a proper trial of the case before it. The Court has also e power to summon any person to appear before it and to depose in the case. When his evidence is considered necessary for a proper trial and that in the interest of justice. In the instant case the production of the relevant bank document is vitally necessary for proof of the complainant's case and as such the learned Magistrate was not at all justified in refusing to call for the necessary Bank document and refusing to summon the local Sonali Bank Manager as a witness in the case. The learned Magistrate is directed to cause production of the necessary band papers for the purpose of the trial by following the provisions of the Bankers, Books Evidence Act, 1891. Juboraj Goula Vs. The State (Criminal), 2 ALR (2013)-HCD-175


Production of document-Section 94(1) of the Code speaks of production of document or thing in the posses- sion or in the power of the persons to whom the summons or the order is issued. The words 'production' and 'possession' clearly indicate that what is to be produced must be a tangible thing. So far as the word 'document' is concerned Section 3(16) of the Act defines that 'document' shall include any matter written, expressed or described upon any sub- stance by means of letters, figures or marks or by more than one of those which is intended to be used, or which may be used, for the purpose of recording the matter.


In the instant case the impugned order Annexure-B asked the petitioner under Section 94 of the Code of Criminal Procedure and Articles 31 and 50 of the Anti-corruption Manual to provide of the names of all the cases which he handled from 1.3.93 to 20.3.94 and the position of those cases. Such information as asked for does not constitute a document. Mohammad Imtiazur Rahman Farooqui Vs. Bureau of Anti-Corruption, 19BLD (HCD)382 Ref: 42 DLR (HCD) 43; 49 DLR(HCD) 599 Cited


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.


Sections 94 & 160-No police officer can ask any person to attend or to appear before him and no person is required to attend a police officer merely because he is ordered or required verbally or in writing unless his attendance is so required in connection with investigation of a criminal case or any proceeding. M Mohsin Hossain vs Government of the People’s Republic of Bangladesh 55 DLR 56.


Section 94—As Section 94 of the Code does not contemplate seizure of any document from the custody of a bank or a banker as defined in the Bankers’ Books Evidence Act, the question of seizure of the bank accounts of Muon and Abdul Momin Tulu by the concerned officers of the defunct Bureau of Anti-Corruption does not arise at all. Tofail Ahmed vs Chairman, Anti-Corruption Commission 62 DLR 33.


Sections 94 & 160—The authority of the Anti-Corruption Officer requiring the petitioners to attend and give statements before him in the interest of an inquiry under the provisions of Section 94 of the Code cannot be questioned. Abdul Hafiz vs Director General, Bureau of Anti-Corruption, Bangladesh 51 DLR 72.


Section 94(1)—The information asked for by the impugned order from the petitioner is not something which is capable of being searched. Therefore the information asked for does not conform to Section 94 of the Code. The impugned order purported under Section 94 of the Code and Articles 31/50 of the Anti-Corruption Manual is unauthorised and illegal as they do not confer any power to direct a person to give information. The information asked for the purpose of inquiry was of a roving nature and was merely fishing for information. If we are to believe that the inquiry was in response to the information received by the anonymous letter then the wholesale information of all cases handled by the petitioner from 1393 to 20394 cannot be said to be connected with the alleged remittance of the sale proceeds of the house at Motijheel and Guishan. The asking for such wholesale information of the cases handled by him for that period appears to us to be malafide, fishing for information only to harass the petitioner. Imtiazur Rahman Farooqui (Md) (MI Farooqui) vs Bureau ofAnti-Corruption 51 DLR 421.


Section 94(1)—The inquiry stage of an offence, the provisions of Clause (a) to the Proviso to sub-Section (1) of Section 94 of the Code cannot be called in aid and the same are only meant for the purpose of investigating offences under Sections 403, 406, 408 and 409 and Sections 421 to 424 (both inclusive) and Sections 465 to 477A (both inclusive) of the Penal Code, with the prior permission in writing of the Sessions Judge concerned. Tofail Ahmed vs Chairman, Anti- Corruption Commission 62 DLR 33.


Section 94(1)(a)—The applicability of Clause (a) to the Proviso to sub-Section (1) of Section 94 of the Code to the investigation of an offence under any of the Sections of the Penal Code has not been brushed aside by the Appellate Division in the case reported in 1996 BLD (AD) 200 = 2 BLC (AD) 78. Tofail Ahmed vs Chairman, Anti-Corruption Commission 62 DLR 33.


Section 94- Before the seizure and search of documents and other things in respect of certain offences, prior permis sion of the Sessions Judge is necessary and in some cases, the permission of the High Court Division is necessary. By reason of this prohibition, the investigation officer can not ask any financial institution within the meaning of Bank Companies Act to show particulars of bank accounts being maintained by its customers for the purpose of inquiry or investigation in respect of offences under the Money Laundaring Protirod Ain and other specified offences. It is only with the permission of the Sessions Judge, this can be done. Anri- Corruption Commission, Dhaka vs Abdul Azim, 69 DLR (AD) 208


Section 94-Naturally, whenever the Commission gets information regarding the commission of an offence by any person which requires production and/or inspection of a document which is in custody of a bank or banker as defined in the Bankers' Books Evidence Act and relates to disclosing of any information of bank account of any person, prior permission to the Sessions Judge is necessary. The Session Judge in such eases passes an order in his administrative capacity because no proceeding has yet commenced. Under such circumstances, on perusal of the report of the investigation officer in which he has disclosed the purpose for seizure of the documents in question, if the Sessions Judge is satisfied that the seizure of document or the inspection of the bank documents relating to handling of the account is necessary for the purpose of ascertaining the truth or falsehood to the in formation, he accords. the permission. Anti-Corruption Commis- sion, Dhaka vs Abdul Azim, 69 DLR (AD) 208


Section 94- Obviously those documents were related to the proceedings pending there but the same, as it patently appears, are not at all indispensable and basic for determining criminal liability of the petitioner in the proceedings going on in our own court of law. Essence of Court's order also demonstrates it, and thus, it does not suffer from any illegality. Moudud Ahmed vs State, 69 DLR 428


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 MohammadErshad 52 DLR (AD) 162.


Section 96(1)(3)—Appeals disposed of on a petition of compromise—High Court Division later vacated the order and restored the two appeals on the allegation of the respondents that the petition of compromise was forged and collusively created. On a petition of compromise the two appeals were disposed of by the High Court Division on 17th May, 1983 in terms contained in that petition. The respondents filed an application for the restoration of those appeals on the ground that the petition of compromise was created collusively and it was a forged document. The High Court Division vacated the order dated 17th May, 1983 and restored the two appeals to their file and number by an order dated 6th April, 1986. This Court refused on 31st August, 1986 to interfere with that order. Abdul Gafur vs State 41 DLR (AD) 127.


Section 98—Provision of Section 98 is applicable only when the magistrate is satisfied that the place to be searched is used for deposit or sale of stolen property. Qari Habibullah Belali vs Captain Anwarul Azim 40 DLR 295.


Section 98—Even if the facts disclosed in the complaint are true and the properties of the complainant are wrongfully retained, recovery of such goods by issuing search warrant is not at all contemplated under Section 98 of the Code. Saiduzzaman vs Munira Mostafa 56 DLR 274.


Section 98-Seizure of stolen goods-For seizure of stolen goods no petition is required to be filed by the complainant in the case. Return of goods seized under Section 98, Criminal Procedure Code-Section 98 does not provide for returning goods to persons from whom the same had earlier been seized. Md Yousuf Ali vs Munir Sonar, 25 DLR 206.


Section 98-Where not applicable-Sections 98 & 165, CrPC have no application whatsoever to a search made before any inquiry, investigation, trial or before recording of FIR. 2001 P Cr LJ 685.


Section 98-This Section is applicable only to search of house suspected to contain stolen property, forged documents, Bank notes/counter-feit coins, obscene objects, intended to be distributed or circulated, etc. There is no provision in CrPC to warrant issuance of an order for search of a house on an incognito/anonymous informa- tion that zina was being committed. PLJ 1998 Lah 1311.


Section 98-Place used for deposit of stolen property-A Magistrate is only to be satisfied that a particular place has been used for the deposit or sale of stolen property before he issues the warrant. If the Magistrate does not mention the place to be searched for stolen property the search-warrant is illegal. PLD 1968 Dacca 229 20 DLR 63 (DB) Section 98 Resistance to entry Without getting permission of the occupant or without a search warrant no stranger including a Police Officer can enter the house of any person, otherwise if such stranger or Police Officer is confined in the house or is belaboured or injured by the inmates of the house in such circumstances, they would not be committing any offence being justified in the matter. 1998 P Cr LJ 196.


Section 98-Resistance to warrant Where a form under this Section is used for a warrant under Section 100 with necessary alterations, the defect is only one of form and not of substance and a resistance to such a warrant is not justified. 13 Cri L Jour 18639 Cal 403 (DB).


Section 98-Arms Act-Search under-A Magistrate granting a warrant under the Act must record grounds of his belief. 15 All 129 (DB). Where evidence of an offence is discovered consequent upon a search under an illegal warrant, the conviction will not be vitiated on that ground. AIR 1925 All 434 36 Cri L Jour 1112(DB).


Section 98-Opium Act-Search under-An entry into a vessel for search under the Opium Act of 1878 must be authorised either under Section 15 or Section 19 of the Act. 10 Cr L Jour 85 (FB).


Section 98-Customs Act, 1969-Search under The scope of a search-warrant under the Customs Act is similar to that of search-warrant issued under this Section, but both are independent of each other. AIR 1956 Cal 609.


Section 98-Irrespective of the fact that the property in dispute, the car, being not a stolen property does not come within the mischief of Section 98 of the Code, even precluding this particular aspect, the application under Section 98 of the Code is not maintainable in absence of a pending case, under the provisions of the Penal Code and having no legal standing and ipso facto makes such an application unlawful. Mahtab Hossain Molla (Md) vs State, 21 BLC 461.


It is a settled principle of law that in order to construe the actual meaning and intention of a statute it must be read as a whole and not in part or in an isolated manner. The provisions of the criminal law do not contemplate or consider the sustainability or maintainability of an isolated proceeding or case under Section 98 of the Code of Criminal Procedure. ... (Para 17) The law as it exists does not provide any scope to file or initiate a separate case or proceeding in an isolated manner in under Section 98 in the absence of a pending case or proceeding filed in pursuance of an F.I.R or complaint whatsoever under any of the provisions of the Penal Code. ... (Para 19) Section 98 only confers power upon Magistrate, empowered in this behalf to act in a particular manner to act according to the necessity appertaining to the facts and circumstances arising out of a particular case before the concerned Court arising out of an F.I.R or a complaint as the case may be. Hence a Magistrate, either Executive or Judicial as the case may be, to be able to act in accordance with the provisions of Section 98 being empowered in this behalf, can only proceed under the Section in a pending case and not in the absence of a case or proceeding and the existence of a case or proceeding is a sine qua non that is, an essential condition for resorting to the provisions of Section 98 of the Code. ... (Para 20) It is true that in the case we are dealing with at present, the issue of the property not being ‘stolen’ or ‘forged’ etc. has arisen and the petitioner contended that hence the case does not fall within the mischief of Section 98 of the Code. We do not disagree with the point raised by the learned Advocate for the petitioner given that the property in dispute, that is the car not being a ‘stolen’ property cannot be recovered by resorting to the procedures laid down in Section 98 of the Code. Rather, in the event of a proper case being filed, the appropriate court could have passed an appropriate order in respect of the property under Section 516A of the Code as deemed fit pending conclusion of the inquiry or trial or it could pass an appropriate order under Section 517 of the Code. ... (Para 23) An application under Section 98 of the Code of Criminal Procedure not being isolatedly entertainable or lawfully maintainable at all, therefore in this case the application filed under Section 98 of the Code of Criminal Procedure before the Magistrate Court is not maintainable and is liable to be dismissed not being sustainable in the eye of law. Alhaj Md. Mahtab Hossain Molla Vs. State & anr. 11 SCOB [2019] HCD 102


Section 99A—Forfeiture Notice—Forfeiture of a book is a preventive provision so that the author or the publisher of the book does not continue to commit the offence. Under the scheme of law forfeiture is provided and the remedy against the forfeiture having been provided under Section 99B of the Code, the Government was not required to issue any notice to the author or publisher of the book giving him opportunity of being heard before passing the impugned order. Sadaruddin Ahmed Chisty vs Bangladesh 48 DLR 39.


Forfeiture of Publication of the Government to forfeit publications and power of the High Court Division to set aside order of forfeiture The order of forfeiture is essentially a preventive action so that the author or the publisher of the disputed book does not continue to commit the offence of outraging the religious feelings of any class of citizens and as such no show cause notice is necessary before passing the order of forfeiture. The objective satisfaction of the Government gives the order of forfeiture the sanction of legality which is only subject to judicial review-Code of Criminal Procedure, 1898 (V) of 1898) Sections. 99A and 99B Dr. (Homeo) Baba Jahangir Beiman-al- Shureswari Vs. The State, 16BLD(HCD140


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.


Section 99A—Forfeiture of book— Government is not required to issue notice—The provision may be invoked when the writing and publishing of a book constituted a penal offence. The order of forfeiture is a preventive action requiring no notice to the author or the publisher to give them opportunity of being heard. Bangladesh Anjuman-e-Ahmadiyya vs Bangladesh 45 DLR 185.


Section 100-From a reading of the provisions of law, it is clear that the Metro- politan Magistrate or Magistrate, Ist class or an executive Magistrate is empowered to pass an order of search warrant, if there is any reason to believe that any person is confined. Firozul Islam vs State, 70 DLR 744


Sections 100 & 552—A Magistrate cannot detain a person unless he or she is an accused in a criminal case. The petitioner being above 16 cannot be a minor within the meaning of Section 361 Penal Code and as such, the Magistrate has no jurisdiction to keep her in custody or to deliver her to the custody of her father. Fatema Begum @ Urmila Rani vs Gageswar Nath and State 46 DLR 561.


S. 101-Held: In view of the facts and circumstances of the case I have the reason to inclined such a view that it is settled in our Court that to every adult person the law assigns a domicile which is called the domicile of origin and which remains attached to him until a new and different domicile takes its place. There is absolutely nothing on the record to show that the accused respondent ever became an Indian citizen in substitution of his domicile of origin. Therefore, the domicile of origin remains attached to him. Relied on 32 DLR (HCD)-160. Jnanendra Nath Barai Vs. Govt. of Bangladesh & Ors, 21 BLT (2013)-HCD-03.


Section 103—Applicability of the provision relating to search—For the purpose of conducting search in order to find out as to whether a person is guilty of an offence under Section 46 of the Excise Act the provision of Section 103 CrPC has no application. Dilip Kumar Ghose vs State 42 DLR 464.


Section 103—Procedure of search— Applicability—The fulfillment of the provision under Section 103 CrPC is not required, because the pipe-gun was not recovered by the police on search but it was produced by the accused himself. Abdul Hashem Master vs State 44 DLR 159.


S. 103-Allegation under Section 156(89) of the Customs Act read with Section 25B(1)(Kha) of the Special Powers Act, 1974. The provision of Section 103 of the Code of Criminal Procedure provides that at list two respectable witnesses of the locality must be present at the time of search and seizure. Whereas it is admitted by the P.W.1,2 that there is no local witness who saw the fact of recovery of those articles which alleged to have been recovered from the exclusive possession of the convict-appellant. Thus, the fact of search and seizure was not held as per aforesaid provision of the law. Hence, the fact of search and seizure appears to be vitiated by initial inherent infirmities. Md. Mostafa Jaman Vs. The State, 21 BLT (2013)-HCD-476.


Section 103-Search—The provisions for search to be made in presence of witnesses are designed to create a safeguard against possible chicanery and a concoction on the part of the Investigating Officer and it is obligatory for him to ensure that the search was conducted honestly. Subodh Ranjan vs State 45 DLR 521.





Section 103—Prosecution cannot be disbelieved merely because of the fact that the seizure list witnesses stated that the arms were not recovered in their presence.


Now, the question is whether in a case like this, evidence of the informant and the Investigating Officer can be disbelieved or not. Here, we have found that there is no suggestion from the side of the defence that the informant and the Investigating Officer PW 13 had any enmity with or grudge against the accused persons for which they were falsely implicated in this case. The only suggestion given to the prosecution witness is that the accused persons were falsely implicated by the informant for his personal gain in his service. Rana Madbar vs State 51 DLR 499


Section 103—The Court should not take too rigid a view regarding the provisions of Section 103 of the Code. In the absence of any cogent reason to disbelieve the members of law enforcing agency, the Court is competent to convict the accused relying on their testimony without being corroborated by the local seizure list witnesses. Kashem vs State 54 DLR 212.


Section 103—Search for and seizure of incriminating articles without strictly complying with the requirement of Section 103 of the Code of Criminal Procedure cannot be held legal. This principle of law is applicable in the instant case. A Wahab vs State 60 DLR 34.


Section 103—There is no legal bar to convict and sentence the accused under Arms Act mainly on the evidence of Police personnel if there appears no falsehood in their evidence. We do not find any bar to convict the accused Mohiuddin on the basis of unimpeachable evidence of the Police witnesses who made the search and seizure. This view finds support in the case of Nurul Islam vs State report in 1988 BLD 106. Mohin Uddin vs State 61 DLR 35.


Section 103 When search would be made under Chapter VII of the Code compliance of provisions of Section 103 is not mandatory regarding search and seizure under special law....(56) [73 DLR 36]


Section 103 While the search is to be made for the purpose of recovery of documents or any other movable property or for the discovery of any person wrongfully confined, Section 103 shall be applied. [73 DLR 37]


Section 103 Provisions of Section 103 of the Code shall strictly be applied only when search is made under Chapter VII of the Code and provisions of this Section are not applicable when search and seizure are made in connection with the offences under special law like the Ain, মাদকদ্রব্য নিয়ন্ত্রণ আইন, ১৯৯০, as such, we do not find any illegality regarding modus operandi of search and seizure applied in this case.......(57) [73 DLR 37]


Section 103—There is no legal bar to convict the accused under Special Power Act mainly on the evidence of police personnel if there appears no falsehood in their evidence. Thus there is no bar to convict the accused Yunus Ali and Shawkat on the basis of unimpeachable evidence of the police witnesses who made the search and prepared the seizure list. Yunus Ali vs State 61 DLR 793.


Section 103-If a person makes a confessional statement to a police officer which led to the discovery of the article or leads the police to the place where it is lying, and the police officer seizes contraband article on compliance of procedures contained in Section 103 of the Code, and if such officer proves to the satisfaction of the Court the seizure of the article and the prosecution examines the attesting seizure list witnesses in Court, and proves their signatures in the seizure list, whether or not the attesting seizure list witnesses support the prosecution case, the Court may infer a presumption in favour of the prosecution that the police officer or other officer conducting the search and seizure has acted in an official capacity, that the act of the officer in seizing the articles has been done regularly in discharge of his public duties and that the attesting seizure list witnesses are making obliging statements for fear of reprisal. Rabiya Khatun vs State 58 DLR 458.


Section 103—Now it is time to review the criminal law, at least to amend Section 103 of the Code of Criminal Procedure, 1898, to review the principle that burden of proof never shifts in criminal cases, specially in the cases of corruption, offences against sexual violence, murder of women and children, trafficking in arms, drug, narcotics, women and children. Nasir vs State 62 DLR 49.


Sections 103 & 165—Since the arms were recovered at the instance of the accused, no search was necessary, invoking the application of the provisions provided in law for carrying out a search. No question of following the provisions of Sections 103 and 165 of the Criminal Procedure Code and Section 25 of the Arms Act therefore arises. Kamruzzaman vs State 47 DLR 416.


Section 103(1)—Search was done on 24-1-2007 whereas the seizure list was made on 31-1-2007 after seven days of the search which clearly proves that the action of the respondent is a malafide which is clear misuse of power and the same should be interfered with by this Court. Insab Au vs Magistrate, Abu Zafar, Jessore 63 DLR 290.


Section 103(1) & (2)—The provision relating to search and seizure provided in subSections (1) and (2) of Section 103 of the Code of Criminal procedure are mandatory and any search and seizure without strictly complying with the aforesaid provisions must be deemed to be illegal. Habibur Rahman alias Jane Alam vs State 47 DLR 323.


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, [1 LM (AD) 581]


Section 107—Conspiracy—Its meaning— This word is not defined in the Ain, 1995. The ordinary meaning of the word abetment and also the definition thereof in Section 107 of the Penal Code can be taken as a guideline, according to which abetment includes conspiracy or instigation, and also aid to an illegal act or omission. State vs Shahidul Islam alias Shahid 58 DLR 545





Sections 120A and 535-Even if no formal charge is framed or there is omission to frame a charge unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction in view of Section 535 of the Code. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13


Section 120A-The criminal cons- piracy doctrine only require overlapping chains of agreement that link the physical perpetrator to the accused. However, the lack of a direct agreement between the defendant and the physical perpetrator is no bar to applying the conspiracy doctrine as long as the chain of overlapping agree ments connects them. Salina Islam Beauty vs State, 68 DLR 59 Section 144—Status quo is not contemplated in a proceeding under Section 144 CrPC. Nazibul Islam vs Dr Amanullah 40 DLR 94.


Section 144—A Magistrate has no jurisdiction under Section 144 CrPC to issue notice upon the parties to file written statement before him showing cause by a certain date. Nazibul Islam vs Dr Amanullah 40 DLR 94.


Sections 144 and 145(4)-The instant case is not one of conversion from Section 144 to 145 CrPC. By the impugned order the application under Section 144 CrPC was disposed of and a proceeding was drawn under Section 145 CrPC being satisfied as to the apprehension of serious breach of peace. Nazibul Islam vs Dr Amanullah & the State 40 DLR 94.


Plaintiffs constrained to institute the in- stant suit for declaration of title and re- covery of khas possession ...(2) It appears form the record that the trial Court discussed the evidence on record and the documents and also perused the documents and exhibits and also consid- ered the material on record and made its clear observation and on the other hand the Court of Appeal below without ap- plying its judicial mind and without. Mo- hizuddin vs. Abdul Latif (Mohammad Fazlul Karim J) (Civil) 10 ADC 964


Section 144, 145 Proceeding under Section 144 of the Code of Criminal Procedure was started but later on same was converted into a proceeding under Section 145 of the Code of Criminal Procedure and the properties of the aforementioned three schedules were attached and manage- ment thereof was given to the receiver appointed by the Court. Mosharraf Hossain Chowdhury vs. Md. Jahurul Islam Chowdhury (Md. Ruhul Amin J) (Civil) 6 ADC 631


Sections 144 and 145-Though an aggrieved party is at liberty to approach the Court of District Magistrate at any point of time invoking the jurisdiction of the District Magistrate under Section 144 or 145 of the CrPC during pendency of a civil suit in which no order as to possession of the disputed property has been passed by the civil ourt, it is incumbent upon the Magistrate to inquire into the fact as to whether there is any civil suit pending over the same property and once the Magistrate comes to know about the pendency of the civil suit regarding the disputed property, his first duty is to direct the aggrieved party to obtain an injunction from the civil Court; if it appears to the Magistrate that the situation is so risky that an incident of breaching the peace in the area is likely to occur, the Magistrate then becomes competent to pass necessary order/s under Section 144/145 of the Code. Amin Ahmed vs State, 69 DLR 268


Sections 144 and 145-Once the Magistrate decides to pass any order the same must contain the directions upon the parties to prove their respective claims by filing written statements within a fixed time either in person or through their pleaders. The Magistrate, thereafter, upon perusing their statements, hearing the parties and considering the evidence, would come to a decision on the possession of the property with a finding as to whether any or which of the parties was in possession. If it is surfaced that any party was dispossessed within any date of last two months from the date of preliminary order, then the dispossessed party may be restored to its possession upon declaring the said party to be the lawful possessor of the property until evicted therefrom by the order of a competent Court. Amin Ahmed vs State, 69 DLR 268


Section 145/144-No receiver can be appointed of the disputed property unless the proceedings under Section 144 of the Code are converted into one under Section 145 of the Code. Provat Mondal vs State, 64 DLR 182


Section 145-Object of Section 145 is the prevention of incidents likely to arise out of the disputes over possession of an immovable property resulting in breach of peace. The concerned Magistrate, upon coming to know through police report or otherwise as to the likelihood of breach of peace over a land regarding its actual possession, must satisfy himself about the alleged likelihood of breach of peace. In order to be satisfied, the Magistrate should minutely examine the police report or information received through other source. After judiciously considering the police report or other information if the Magistrate is satisfied that there exists a circumstance which is risky for the contending parties and people in general, then it becomes a bounden duty for the Magistrate to make a written order in view of the employment of the word "shall". This is popularly known as preliminary order. This preliminary order must contain the reasons of the Magistrate's satisfaction, the nature of the order; meaning that whether the Magistrate is going to merely ask the contending parties for hearing on the alleged disputes or whether the order is going to be passed in the form of injunction for maintaining peace on the disputed land upon attaching the property by appointing a receiver. Amin Ahmed vs State, 69 DLR 268 Section 145-A proceeding under Section 145 CrPC is not a criminal matter. As to proceedings under Section 145 CrPC it is erroneous to designate the complainant as an informant, having regard to the provisions of that Section. Once an information is brought to the notice of the Magistrate he has to be satisfied that a dispute as to immovable property is likely to cause a breach of the peace. Further proceedings which he starts are not proceedings in the interest of any private party but in the interest of public peace. (See Babu vs Shyam, ILR 1950 All 543). It is, therefore, highly doubtful if a proceeding under Section 145 CrPC can properly be termed as a “criminal matter”. Jobeda Khatun vs Momtoz Begum 45 DLR (AD) 31.


Section 145—The jurisdiction of the 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.


Section 145—Bid money—When it cannot be forfeited—Receiver appointed by the Magistrate being an agent of the Court can attach any condition to the auction held for leasing out the attached property. But in the absence of any such condition attached by him or the Magistrate the part of the bid money deposited cannot be forfeited on the bidder’s failure to deposit the balance money, though the bid can be cancelled and fresh auction held. Amir Hossain Farhad vs DrA Mannan 44 DLR 401.


Section 145—Under Section 145 CrPC the Court deals with the limited scope of finding possession. Haji Golam Hossain vs Abdur Rahman Munshi. 40 DLR (AD) 196.


Section 145—A Magistrate making an inquiry under Section 145 CrPC is to decide the fact of ‘actual possession’ without reference to the merits or the claims of any of the parties of a right to possess the subject of dispute. Aminul Islam vs Mujibar Rahman 44 DLR (AD) 56.


Section 145-Jurisdiction of Magistrate acting under sub-Section (1) does not cease until and unless the proceeding is either cancelled under sub-Section (5) or is finally disposed of under sub-Section (6). Exercise of power under sub-Section (5) not dependent upon the result of inquiry under sub Section (4). The jurisdiction once validly acquired by the Magistrate acting under sub-Section (1) of Section 145 of the Code of Criminal Procedure does not cease until and unless the said proceeding drawn under sub-Section (1) is cancelled under subSection (5) or the subject-matter of the proceeding is finally disposed of under sub-Section (6) declaring a party to be entitled to possession thereof. At any stage of the proceeding the Magistrate may come to the conclusion that there is no longer any case for continuing the inquiry. The exercise of power under sub-Section (5) is not dependent upon the result of inquiry under sub-Section (4). Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.


Section 145-Right to show that no dispute exists or existed—in moving for cancellation for preliminary order a party has liberty to produce evidence—What is evidence depends upon the facts and circumstances of each case—Single piece of paper may prove to the satisfaction of the magistrate that a dispute exists or existed or that there is no apprehension of breach of peace. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.


Section 145—The High Court Division should not interfere with the finding of possession passed by the Magistrate on proper evidence unless the finding is perverse. Soleman vs Ahbarek Khalfa 46 DLR 298.


Section 145-Court’s concern in a proceeding under this Section—The basic condition for a proceeding under Section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc, between the rival claimants. The concern of the Court in such a proceeding will therefore be the factum of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights. Abdul Jabbar vs Azizul Haque 46 DLR 416.


Section 145—A Magistrate’s satisfaction while exercising jurisdiction under this Section cannot be presumed extrinsic to his order, it must be gathered from the express statements made in the order. Abdul Quddus vs State and Md Mobarak Hossain Ratan 47 DLR 506.


Section 145—Filing of case under Section 145 of the Code of Criminal Procedure during pendency of a civil suit between the same parties cannot be said to be proper.


A party to a civil suit, if threatened in his possession, can seek remedy from the civil Court and should not seek such remedy from a criminal Court as civil Court if final arbiter of land disputes. Serajul Islam vs Faziul Haque 47 DLR 480.


Section 145—Dispute of ownership was beyond the scope of determination in a proceeding under Section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.


Section 145—It is the dispute relating to possession that was for a Magistrate to consider in a proceeding under Section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.


Section 145—Since appellate Court is in seisin of the matter after a decree of the Court in favour of 2nd party the Magistrate’s power under Section 145 CrPC is not available. Abdur Rahman Sikder (Md) vs Nur Mohammad Khan. 57 DLR 239.


Sections 145—In a proceedings under Section 145 of the Code the Magistrate is required to decide which of the contending parties was in possession of the disputed property on the date of drawing up of the proceedings or whether two months next before such date on the basis of evidence of possession and not to decide which of the parties has lawful claim of possession therein on the basis of document of title. Shebait Mohanta Sree Kedar Nath Achari vs Sree Khitish Chandra Bhattacharya 52 DLR 176.


Sections 145, 439A and 537—Though the Sessions Judge prematurely intervened, he has passed the order correctly and legally and any irregularity as pointed out is curable by the provisions in Section 537 CrPC. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.


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.


Sections 145 & 146—Dispute as to possession of land—Attachment to continue until civil Court’s decision on title—The parties are litigating their title, as also possession in a Title Suit. It is for them to raise all the questions therein. All comments, observations and findings of the Magistrate in the proceedings under Section 145 CrPC and of the High Court Division while disposing of the application under Section 561A CrPC with regard to the title and possession of the disputed property (the subject matter of the proceeding under Section 145 CrPC) will be ignored by the civil Court while deciding the title suit. It will be fit and proper, in the facts and circumstances of the case, to keep the Magistrate’s order directing the receiver to hand over possession of the case land to the 1st party of Section 145 proceeding in abeyance for .the present and it is so ordered. It is further ordered that pending disposal of the title suit the disputed land will remain under attachment and the 1st party is to hand over possession thereof to the receiver. On receipt of judgment in the title suit, the Magistrate shall dispose of the proceeding before him in conformity with the decision of the civil Court. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.


Sections 145 & 146—Sections 145 and 146 of the Code of Criminal Procedure should be read together as they provide a composite provision to meet a situation as aforesaid. The scheme is that once a proceeding has begun with preliminary order it must be followed by attachment of the property, appointment of a receiver and final determination of right and title by the civil Court. Unfortunately this aspect of the case was not taken into consideration by the Revisional Court which has resulted in failure of justice. The Courts below have travelled beyond their jurisdiction in finding title of the parties which is not their business but the business of the civil Court. The impugned order accordingly needs to be modified by way of keeping properties in custody of the receiver till such time as the parties decide their respective title in a civil Court in accordance with Section 146 of the Code of Criminal Procedure. Abdul Jabbar vs Azizul Haque 46 DLR 416.


Sections 145 & 146—When the receiver is a police officer he could not be dispossessed from the disputed property since he has authority to arrest anyone and send him to jail and also prosecute him for committing a cognizable offence or for violating law and order. Abdul Karim vs Gousddin 51 DLR 259.


Sections 145 & 146-The Magistrate is duty bound as the custodian of the disputed property to take over possession of the same from the 2nd party who is bound by the decree of the civil Court and to make over the same to the first partv. Abdul Karim vs Gousddin 51 DLR 259.


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.


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.


As to proceedings under Section 145. Cr.P.C. 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 there a dispute as to immovable property and there is likelihood of exists a breach of peace. Further proceedings which he states are not proceedings in the interest of any private party but in the interest of public peace. It is highly doubtful if a proceeding u/s 145 Cr.P.C can properly be termed as a 'criminal matter within the meaning of Section 56(e) of the Specific Relief Act. Jobeda Khatun Vs. Momtaz Begum and others 13 BLD (AD) 31 Ref: AIR. 1924(Nag. )80; 23 DLR(SC)14; 36 DLR.(AD)44; In re; N.P. EssappaChettiar, AIR 1942 (Mad) 756; A.LR. 1924(Cal.) 334; AIR 1928 (Cal)464; ILR 1950All 543; AIR 1959(SC)960; (1909) 21 C 266; AIR 1938 (Pat) 606; 1970 UJ (SC) 75; Twenty one year's Supreme Court Digest, 1950-70 by Sk. Agarwal, volume 2(1972) at page 662-Cited Sections 145 and 146(1)—The purpose of the proceeding under Section 145 CrPC is to find out the possession of the property. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.


Sections 145 and 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the information was in fact the First Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be related as one under Section 161 CrPC. Shahjahan vs State 46 DLR 575.


Sections 145 and 561A—As the order of the Civil Court was passed earlier there could not be any proceeding under Section 145 of the Code of Criminal Procedure in respect of that property. Abdul Alim vs State 53 DLR (AD) 64.


Sections 145 and 561A—As the order of the civil court was passed earlier regarding possession of the property, there cannot be any proceeding under Section 145 of the Code of Criminal Procedure in respect of the same property. Abdul Alim vs State 52 DLR 616.


Sections 145 and 164—A statement of witness is not legally acceptable evidence to prove or disprove any accusation, particularly when the witness herself is available in the court to depose about the occurrence. Alam vs State 54 DLR 298.


Sections 145 & 561A––Though two civil suits, instituted before the drawing up of the proceeding under Section 145 CrPC, are pending, the civil Court has not passed any order regulating possession of the case land, nor a decree for possession or permanent injunction has been granted. In this view of the matter, the jurisdiction of the Magistrate to act under Section 145 CrPC is not ousted. Mozaffar Ahmed vs State 49 DLR 485.


Sections 145 & 561A—When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under Section 145 CrPC. Abul Bashar vs Hasanuddin Ahmed 51 DLR (AD) 14.