Code of Criminal Procedure, 1898

Section 561A S. 561A-Quashment under section 561A of the Code is possible in cases of (a) facts alleged not constituting any offence (b) bar of law (c) coram non-judice (d) lack of legal evidence adduced and for ends of justice. Nazrul Islam Vs. State, 18 BLC (2013)-HCD-114. S. 561A-The jurisdiction is neither an appellate nor a revisional one. It is a special extra-ordinary jurisdiction, the main aim and object of which is to save the people from any agony of the abuse of the process of the Court and also is designed to do substantial justice. State Vs. Md. Aman Ullah Aman, 18 BLC (2013)-AD-81. Section 561A-Submission and acceptance of the charge sheet, the consequent cognizance taken by the Courts below and charge framed were based on a legal void. Sohrab Ali Dewan vs State, 64 DLR 106 Section 561A-Magistrate failed or omitted to stop the investigation. Such failure or omission resulted in the subsequent illegal actions. For securing the ends of justice, this Court should formally record an order about stopping the investigation. But in reality the case has already proceeded to the stage of cognizance and framing of charge. The proper course of action would be to treat the investigation as having been stopped and to quash the subsequent proceeding. Sohrab Ali Dewan vs State, 64 DLR 106 Section 561A-From the plain reading of the first information report it cannot be said that no prima-fucie case could be detected against the accused persons. The prosecution case as stated in the first information report has got prima-facie ingredients of the offences alleged. The exact nature of the offence against the petitioners can only be thrashed out upon a trial. Muntasir Hossain MD, Unipay 20 (BD) Lid va State, 64 DLR 177 Section 561A-The procedural due process was not complied with by the Executive Magistrate causing grave prejudice to the petitioner and rendering his conviction won-est in the eye of law. Foyez Ahmed vs State, 64 DLR 257 Section 561A-The entire proceedings of the case right from the beginning to the passing of the impugned order of conviction and sentence were an abuse of the process of the Court and since the same were an abuse of the process of the Court, the petitioner, it seems, rightly invoked the jurisdiction of the High Court Division under section 561A of the Code. This being the scenario, he did not commit any wrong in not exhausting the appellate forum as mvisioned by section 13 of the Ain. Foyez Ahmed vs State. 64 DLR 257 Section 561A-Quashing-Initiation -Since there is no legal bar against the initiation and continuation of the proceedings and, as such, the proceedings do not amount to an abuse of the process of the Court. Raj Kumar Khetan vs Mercantile Bank Lid, 64 DLR 272 Section 561A-Justice will be met if the seized rice can be given in the custody of the petitioner on furnishing reasonable bank guarantee to the sattisfaction of the Court concemed. Tarun Majumder vs State, 64 DLR 279 Section 561A-When the law gives anything to anyone it gives also all those things without which the thing itself could not exit. But this power must be exercised very sparingly cautiously and only in exceptional cases keeping in view the facts and circumstances of each and every case. The inherent powers which are in the nature of extra ordinary power have to be pressed in aid when there is a flagrant abuse by subordinate Court. Joynal Abedin va State. 64 DLR 393 Section 561A-The "account payee cheque mentioned in the complaint petition has not lost it's character as negotiable instrument, the same can he easily brought within the mischief of "any cheque mentioned in section 138(1) of the Act because cheque includes "accoum payee cheque Mohammad Ali vs State, 6-4 DLR 426 Section 561A-Money Laundering is deemed as a financially based crime. It has potentially devastating economic security and social consequences. From the first information report and charge-sheet it cannot be said that no primo-facie case could be detected against the accused persons. Anti-Corruption Commission Unipay 20 Bangladesh Lad. 64 DLR 444 Section 561A-When trial of a criminal case is started by taking evidence of prosecution witnesses normally such trial should not be disturbed by invoking inherent jurisdiction because in the process of trial the accused can ventilate all his grievance by cross-examining the prose cution witness as well as examining defence witness. Karrick Chandra Das State, 64 DLR 438 Section 561A-Record shows that the prosecution witness No. I has already been examined and also cross examined leaving no scope to interfere with the trial and the submission so made by the learned Adro- cate for the petitioner to interfere with the proceeding of this stage also has got no legal substance. Kortick Chandra Das vs State. 64 DLR 458 Section 561A-Criminal proceedings can be quashed if there is something on the record to show that the accusations in the complaint do not disclose an offence, at all, or that evidence adduced in the case discloses no offence as in that event, the process of the court an be said to have been abused. Rabeya Khanam vs State, 64 DLR 467 Section 561A-Whenever the High Court is satisfied that the mandatory provision of law is over-looked High Court Division exercising its discretion power under section 561A of the Code can quash the proceeding. Md Ismail vs State, 64 DLR 473 Section 561A-The order of acquittal passed by the Additional Distinct Magistrate, is quite right and justified. The reopening of the case will start abuse of the process of the court and in such circumstances; the re-opening of the case will strengthen the abuse of the process of the court. It is a fit case for the interference at this stage to stop abuse of the process of the court and to secure the ends of justice exercising inherent power under section 561A of the Code. Akkas Ali Sarder vs State, 64 DLR 483 Section 561A-This Court cannot embark an enquiry as to whether allega- tions and materials on record are reliable or not. Those are purely functions of the trial Court to consider with the help of evidence to be adduced by the parties. Begum Khaleda Zia vs State, 64 DLR 1 Section 561A-Whether the Prime Minister had withdrawn money with malafide intention allowing others to misappropriate, or she was involved in the alleged offences in the discharge of her official power as a Public Servant, are factual aspects and subject matters of adjudication by the trial Court. Begum Khaleda Zia vs State, 64 DLR 1 Section 561A-The High Court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. AKM Fayekuzzaman vs State, 64 DLR 37 Section 561A-Remedies are available either through complaint to the Registrar of Joint Companies; as it is a Bank, to the Bangladesh Bank; or seeking remedy before the Company Bench of the High Court Division. Withholding a scheduled election at the whim and caprice of a few Directors or Company Secretary is not possible as has been alleged by the complainant. Golam Mahbub vs State, 64 DLR 44 Section 561A-Since the prosecution evidence is singularly silent about the recovery of the incriminating arms and ammunitions from the possession and control of the petitioner, the Tribunal below was not justified in law in passing the impugned order of conviction and sentence against the petitioner. Shahjahan vs State, 64 DLR 49 Section 561A-It can not be said that the petitioner invoked the extra-ordinary jurisdiction of the High Court Division under section 561A of the Code of Criminal Procedure with unclean hands. Shahjahan vs State, 64 DLR 49 Section 561A-In an arms case the absolute, control and conscious possession of the incriminating article is mandatory for convicting any person, but in the instant case we do not find any such evidence. It is a case of no evidence. Mostafa vs State, 64 DLR 544 Section 561A-The inherent power of the High Court Division under section 561A of the Code can only be invoked if the proceedings are under the provisions of the Code. It does not provide any relief if the trials are not conducted under the provisions of the Code. Since the convictions were made by the various Martial Law Courts, illegally constituted under the Martial Law Proclamations and Regu- lations and not under the Code, the inherent power of the High Court Division under the provisions of section 561A cannot be invoked. Siddique Ahmed vs Government of Bangladesh, 65 DLR (AD) 8 Section 561A-The petitioner earlier moved an application under section 561A of the Code to quash the proceeding of the case before this Division; but being unsuccessful taking new device, the petitioner by filing an application under section 344 of the Code has challenged the proceedings of the case and jurisdiction of the Court. No doubt the application is misconceived and thus, not tenable in law. (PER M ENAYETUR RAHIM JAGREEING WITH MD FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41 Section 561A-There is nothing in the FIR and charge-sheet to show as to how the accused-petitioner had connivance with the principal accused in the matter of creating forged document. The facts disclosed in the FIR and charge-sheet do not attract any offence against the accused-petitioner to proceed against him. Continuation of such proceeding after taking cognizance would be sheer abuse of process of the Court. Shafiqul Alam (Md) vs State, 65 DLR 83 Section 561A-A criminal proceeding starts from the date of taking cognizance and if it is found that the allegations made in the FIR or petition of complaint do not disclose any pima-facie case, against the accused-petitioner, continuation of such proceeding would be useless and prepos- terous; and as such, it is an abuse of the process of the court rendering the same liable to be quashed. Shafiqul Alam (Md) vs State, 65 DLR 83 Section 561A-Whether the petitioner had any role in the illegal transaction or whether he abetted the principal accused in manipulating the tender for sale of the case properties and whether the petitioner is a bonafide purchaser for value are all disputed questions of fact which may be resolved on taking evidence by the trial Court. Ali Haider Chowdhury vs State, 65 DLR 116 Section 561A-Fugitive-In the absence of surrender before the process of the Court, the application filed under Section 561A of the Code is incompetent and not maintainable in the eye of law. Ali Haider Chowdhury vs State, 65 DLR 116 Section 561A-Proceeding cannot continue against the petitioner alone as the abettor of the offence of criminal breach of trust without the principal offender of such offence. Badsha Mia vs State, 65 DLR 189 Section 561A-Since there is legal bar against the initiation and continuation of the proceedings and, as such, the proceeding amounts to an abuse of the process of the Court. Ahmed Akbar Sobhan vs State, 65 DLR 218 Section 561A-Fugitive from Justice -When a person wants to seek remedy from a Court of law, he is required to submit to the due process of the Court and unless he surrenders to the jurisdiction of the Court, the Court will not pass any order in his aid. The accused-petitioners did not obtain regular bail after expiry of the period of anticipatory bail and, as such, they become fugitive from the proceedings in the eye of law. Tajul Islam vs State, 65 DLR 336 Section 561A-Proceeding of the case, where as many as 9 witnesses have been examined and cross-examined cannot be quashed under section 561A of the Code. Monir Hossain vs State, 65 DLR 413 Section 561A-Just because a civil suit has been filed questioning the validity of the notice and proceeding pursuant to the same, and if only for that reason the proceeding is quashed or stayed, no criminal case in this country can proceed because in each and every criminal case the accused will try to take recourse to civil suits before the civil Courts challenging the proceeding on any pretext. Just for the pendency of a civil suit, there cannot be any legal hindrance in going ahead with the proceedings. Mahmudur Rahman vs State, 65 DLR 437 Section 561A-Stop Payment-Since the cheques were returned by bank with the endorsement "payment stopped by the drawer" it is to be presumed that those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under section 561 A of the Code. SM Redwan vs Md Rezaul Islam, 66 DLR (AD) 169 Section 561A-Legislature has not created any absolute bar in filing a petition of complaint before expiry of thirty days of the receipt of the notice issued under clause (b) of the proviso to section 138 as created in case of filing a petition of complaint after expiry of one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. Prematurity shall be cured the moment the period of thirty days expires and the payment of the dishonoured cheque is not made within the said period. Zahidul Islam (Md) vs Md Kamal Hossain, 66 DLR (AD) 180 Section 561A-Defence materials as submitted by the accused-petitioner cannot be considered in a quashing proceeding. Mohidul Islam (Ripon) (Md) vs State, 66 DLR 108 Section 561A-Allegations brought against the accused-petitioner are factual matters which require to be resolved on taking evidence. Since the excavator was in possession of the accused-petitioner prior to filing of the case and since it was recovered from the possession of the accused-petitioner, justice will be met if it remains with the accused-petitioner until the allegations brought against him are proved on evidence. Abdur Razzak Liton (Md) vs State, 66 DLR 334 Section 561A-Disputed questions of fact cannot be determined by the High Court Division by invoking its extraordinary jurisdiction under section 561A of the Code. What's more whether the allegations of abetment in manipulating the tender for sale of disputed properties are true or false can only be resolved during the trial of the case. The admissibility, propriety or sufficiencies of materials collected by the prosecution are matters of evidence. ACC vs Mehedi Hasan, 67 DLR (AD) 137 Section 561A-Exercising the inherent power by the High Court Division, the requirement is to see whether continuance of the proceeding would be abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The Criminal Procedure Code contains a detailed procedure for investi- gation, charge and trial and in the event the High Court Division is desirous of putting a stop to the known procedure of law, it must use a proper circumspection and great care in exercise of its inherent jurisdiction. ACC vs AAM Habibur Rahman, 67 DLR (AD) 278 Sections 561A-The settled principle is that while considering of the application under section 561A of the Code the High Court Division will not take into consideration of the defence papers. ACC vs AAM Habibur Rahman, 67 DLR (AD) 278 Sections 561A and 173-Non implicating any person as accused in a proceeding cannot be a ground for quashing the proceeding of the charge- sheeted accused when the prima-facie case had been established against him. ACC vs AAM Habibur Rahman, 67 DLR (AD) 278 Section 561A-The hard earned money of the people spent from the public exchequer cannot be misused at the whims and sweet wills of the accused-petitioner and others for their illegal gains and benefits. Yunus (Md) vs State, 67 DLR 97 Section 561A-Disputed questions of fact cannot be decided invoking the jurisdiction under section 561A of the Code and it is the function of the trial Court which will decide the factual aspects of the case on taking evidence. Yunus (Md) vs State, 67 DLR 97 Section 561A-Application filed under section 561A of the Code is main- tainable even after framing of charge. Yunus (Md) vs State, 67 DLR 97 Section 561A-Inherent power under section 561A of the Code can be invoked at any stage even after conclusion of trial if it is necessary to prevent the abuse of the Court or otherwise to secure ends of justice. Yunus (Md) vs State, 67 DLR 97 Section 561A-Criminal offence never abates and the proceeding drawn against another accused was quashed, the same have not reached its finality unless the same are finally adjudicated and decided by the higher forum. Yunus (Md) vs State, 67 DLR 97 Section 561A-In dealing with an application under section 561A a court may take into consideration the hardwork on the part of prosecution at different stages before initiation of a proceeding by way of taking cognizance by a court below because ends of justice is not a one way traffiq, i.e. for accused only, but also for victims of an offence, therefore any interference might be similar to uproot-a growable tree without waiting to see what kind of fruit or flower it could produce as a grown up tree in course of time. This kind of application should not be allowed in order to delay the proceeding to reach its conclusion on merit expeditiously. M Shamsul Islam vs State, 67 DLR 294 Section 561A-The presence of the elements of an offence is an essential part of commission of an offence which are difficult to be examined on an application under section 561A of the Code and can hardly scrutinize the presence of such elements at this stage, as there is always a risk in application of the inherent power of this Court prematurely.M Shamsul Islam vs State, 67 DLR 294 Section 561A-Pendency for a matter for such a long period of time without taking an appropriate measure for hearing the Rule in early stage is unfortunate and undesirable when it is accepted that trial court should have dealt with the matter expeditiously in order to conclude the trial. M Shamsul Islam vs State, 67 DLR 294. Section 561A-Mere physical posses- sion of the counterfeit notes is not an offence punishable under section 25A of the Act but the intention as it transpires from the FIR, facts, circumstances on record and the other evidence it has become clear to us that criminal proceeding cannot be quashed at this stage of hearing because it needs evidence to be recorded by the court during the course of trial to establish the intention of keeping huge quantity of counterfeit note in the apartment. Abdul Wahed Gaffar vs State, 68 DLR (AD) 218 Section 561A-A proceeding cannot be quashed depending on alleged proce- dural error in the method of collection of evidence to be adduced and used. Anti- Corruption Commission vs Rezaul Kabir, 68 DLR (AD) 291 Section 561A-The contents of the FIR of each case, other facts and circum- stances disclosed the elements of offences alleged and those offences had been committed even before laying traps. Without taking into consideration whether the prima-facie cases against the accuseds had been made out or not in view of the facts and circumstances apparent from the FIR, charge-sheet and other materials. Anti-Corruption Commission vs Rezaul Kabir, 68 DLR (AD) 291 Section 561A-The vires of the law has not been challenged in the writ petition. There is no assertion in the writ petition that the statutory relief under section 561A of the Code was ever sought to agitate the grievances. Surprisingly, there is no state- ment in the writ petition to the effect that the petitioner is constrained to file the writ petition because of either the absence of or inadequacy of equally efficacious alter- native statutory remedy. Begum Khaleda Zia vs Anti-Corruption Commission, 68 DLR 1 Section 561A-Quashment of a criminal case for non-supplying of certified copy of any document, which is not available in record, is not legally accept- able. Giasuddin-al-Mamun (Md) vs State, 68 DLR 67 Section 561A-Since copies of application has been served upon the State as well as the Anti-Corruption Commission and we have already heard the learned Attorney-General and the learned Advocate for the Commission, issuance of Rule for the purpose of hearing the opposite parties is no more required. Giasuddin-al Mamun (Md) vs State, 68 DLR 67 Section 561A-Since the criminal pro- ceeding can be proceeded independently of the civil suit, there is no bar to proceed with the criminal proceedings. Abu Sayeed Chowdhury (Samrat) vs State, 68 DLR 169 Section 561A-Question of fact is out of the ambit of jurisdiction under section 561A Code and cannot be quashed. Hasan (Md) vs State, 68 DLR 225 Section 561A-A lot of petitions under section 561A CrPC are moved without impleading the beneficiary of the cheque/ the complaint as party to the proceeding. Appropriate provisions may be made to secure justice to the aggrieved and to stop indiscriminate granting of bail without at all considering the chance of absconsion of tampering with the evidence. Harun-or- Rashid vs State, 68 DLR 535 Section 561A-In an application under section 561A of the Code, there is little scope to scan the evidence, of witnesses and that since it is not a case of no evidence it is difficult to interfere with the judgment passed by the Tribunal. Sharif alias Shaira vs State, 69 DLR (AD) 41 Section 561A-Determination of a person having consent or connivance of, or is attributed to or any negligence on his part during the business of a Company or not is a disputed question of fact and can only be determined upon taking evidence during trial. There is no scope to decide the question of fact, sitting under jurisdiction of section 561A of the Code. Mozahar Sowdagor (Md) vs State, 69 DLR 204 Section 561A-On a reading of the petition of complaint it is difficult to hold that there is any legal bar or the continuation of the proceeding will amount to an abuse of the process of the Court. The proposition of law is by now well settled that on the basis of the defence plea or materials, the criminal proceedings should not be stifled before trial, when there is a prima-facie case for going to the trial. Nurul Huda (Md) vs State, 69 DLR 486 Section 561A-Since the charge sheet has not yet been accepted by the Court, in the eye of law there is no proceeding pending against the petitioner and until and unless the Court takes cognizance there is no any scope to exercise the extraordinary power of the High Court to quash the proceeding. Zubaida Rahman vs State, 69 DLR 562 Section 561A-In exercising power the court requires being more cautious and power in a matter of quashment of proceedings is to be exercised sparingly. Exercise of inherent power relates to onerous and more diligent duty of the Court. Only when the Court, in light of facts and circumstances is justifiably prompted to conclude that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, it can make it convinced that the proceedings need to be quashed. Zubaida Rahman vs State, 69 DLR 562 Section 561A-Reliability of the accusation against the petitioner can be well adjudicated only in trial on the basis of evidence to be tendered by the prosecution when the petitioner must have due opportunity of being defended and to refute the arraignment brought against her, if cognizance of offence is taken and trial commences on framing charge by the Court of competent jurisdiction. Zubaida Rahman vs State, 69 DLR 562 Section 561A-The Court must act in accordance with the mandate of the statute and in delivering judgment or passing any order; it must see its power conferred by the statute and cannot attribute something beyond the scope of the relevant section of the statute. Khondker Latifur Rahman vs State, represented by the Deputy Commis- sioner, Chittagong, 70 DLR (AD) 25 Section 561A-Ordinarily the High Court Division cannot exercise its inherent power in awarding costs. There is no express provision in the Code authorizing the High Court Division to award costs in exercising its inherent power under section 561A of the Code. The only provision in section 344 of the Code which authorizes a criminal Court to award costs during trial of a case. Other than section 344 of the Code, sections 250, 544, 545, 546A of the Code empower a Court to pass an order to pay compensation only for defraying expenses of prosecution. Khondker Latifur Rahman vs State, represented by the Deputy Commissioner, Chittagong. 70 DLR (AD) 25 Section 561A-In exercising the jurisdiction under section 561A of the Code, the High Court Division shall have the discretion to award costs against a party under a very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the specific provisions of the Code to meet the situations: to prevent abuse of the process of any Court or to give effect to any order passed under the Code or otherwise to secure the ends of justice. Costs may also be given to meet the litigation expenses or can be exemplary to achieve the purposes. Khondker Latifur Rahman vs State, represented by the Deputy Commissioner, Chittagong, 70 DLR (AD) 25 Section 561A-The reasons on which the High Court Division awarded the costs against the accused do not come within the purview of section 561A and more so no such case was made out by the complainant in his counter affidavit. Khondker Latifur Rahman vs State, represented by the Deputy Commissioner, Chittagong. 70 DLR (AD) 25 Section 561A-For quashing a proceeding under section 561A of the Code, the High Court Division has scope only to see whether there are materials on record showing that the allegations made in the FIR and the charge sheet, constitute an offence. If there be any such material the proceeding shall not be quashed, in that case the trial Court will decide the case on the basis of evidence to be adduced by the parties. Begum Khaleda Zia vs State, 70 DLR (AD) 99 Section 561A When a frivolous case is filed with an ulterior motive for wreaking personal vengeance, in that case the Court may exercise its discretion under section 561A of the Code but such power should be exercised very sparingly and with circumspection. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court Division should normally refrain from giving a prima-facie decision in a case where the entire facts are incomplete and when entire material has not been collected…… 76 DLR (AD) 23 Section 561A-On perusal of the statements made in the FIR and the charge sheet it appears that there are some materials which may constitute offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 considering which the High Court Division held that 'there is clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947'. Begum Khaleda Zia vs State, 70 DLR (AD) 99 Section 561A-The accused peti- tioners straight way moving to this Court under section 561A of the Code, at the very initial stage of the case, stayed the whole proceeding of the case; even though there has been some specific allegations against them and while the other co-accused were in absconding against whom the warrant of arrest was pending. Moinul Hoque Chowdhury vs State, 70 DLR 533 Section 561A-The recognized principle for quashing of a criminal case by this Court by exercising its inherent power on the ground of preposterousness is that a plain perusal of an FIR/petition of complaint shall inevitably give an under- standing to its reader that its version is so absurd that ex-facie it transpires to be contrary to nature, reason or common sense, Aleya vs State, 70 DLR 303 Section 561A-When an absconding-convict comes with clean hands before the High Court Division resorting to the extra- ordinary jurisdiction under section 561A and makes out a clear case of no evidence or coram-non-judice, then this Court may entertain the absconding-convict's applica- tion under 561A to secure the ends of justice. Shamim Howlader (Md) vs State, 70 DLR 776 Section 561A-This Court in an appropriate case is legally authorized to review or modify the sentence passed by the trial Court to secure ends of justice. Nasir Mia (Md) vs State, 70 DLR 801 S. 561A-Inherent Power of the Court In view of the fact that neither the F.I.R. nor the charge sheet disclosed any offence against the accused petitioner, any further continuation of the impugned proceeding against him clearly amounts to an abuse of the process of the Court. The exercise of the inherent power of the High Court Division is therefore, necessary only for preventing an abuse of the process of the Court and for securing the ends of justice. Nripendra Chandra Nath Vs. The State, 2 ALR (2013)-HCD-1I14. S. 561A-The powers contemplated under Section 561 A are no doubt quite wide and can be exercised in suitable cases where injustice has resulted there from. It safeguards all existing inherent powers possessed by High Court necessary to secure the ends of justice. Rule was issued under section 561A of the Code of Criminal Procedure calling upon the opposite party to show cause as to why the proceeding of Keranigonj PS case No. 48 under section 147/148/447/307/379/506/427 of the Penal Code in the Court of Ist class Magistrate, Dhaka shall not be quashed. In view of fact and circumstances, High Court Division held that the instant proceedings against the petitioners is an abuse of the process of the court and interference of this court is required under its inherent jurisdiction to secure the ends of justice and the said proceedings is liable to be quashed. Kazi Khairuzzaman and others Vs. The State, 18 MLR (2013)-HCD-178. S. 561A-The functions of the judiciary and the police are complementary, not overlapping and the combination of individual's liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function the Courts function begins when a charge is preferred before it and not until then and, therefore, the High Court Division can interfere under section 561A only when a charge has been preferred and not before. TaeHung Packaging (BD) Ltd. Vs. Bangladesh (Civil), 18 BLC (2013)-AD-144. S. 561A-Formalities before filing the petition of complaint are matters to be thrashed out during the trial and the accused-petitioners shall have ample scope to take those objections at the trial. Jamuna Builders Ltd Vs. Bangladesh (Civil), 18 BLC (2013)-HCD-219. S. 561A-The petitioner earlier moved an application under section 561 A of the Code to quash the proceeding of the vase before this Division; but being unsuccessful taking new device, the petitioner by filing an application under section 344 of the Code has challenged the proceedings of the case and jurisdiction of the Court. No doubt the application is misconceived and thus, not tenable in law. Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41. S. 561A-The inherent power of the High Court Division under Section 561A of the Code can only be invoked if the proceedings are under the provisions of the Code. It does not provide any relief if the trials are not conducted under the provisions of the Code. Since the convictions were made by the various Martial Law Courts, illegally constituted under the Martial Law Proclamations and Regulations and not under the Code, the inherent power of the High Court Division under the provisions of Section 561A cannot be invoked. Siddique Ahmed Vs. Government of Bangladesh (Civil), 65 DLR (2013)-AD-8. S. 561A-Since there is legal bar against the initiation and continuation of the proceedings and, as such the proceeding amounts to an abuse of the process of the Court. Ahmed Akbar Sobhan Vs. State (Criminal), 65 DLR (2013)-HCD-218. S. 561A-Fugitive-In the absence of surrender before the process of the Court, the application filed under Section 561A of the Code is incompetent and not maintainable in the eye of law. Ali Haider Chowdhury Vs. State, 65 DLR (2013)-HCD-116. S. 561A-We also failed to see any logic behind the argument of Mr. Amirul Islam that in order to exercise the power of superintendence and control over the Subordinate Courts and Tribunals as mandated in article 109 of the Constitution, the High Court Division can really exercise its power of judicial review and thus, interfere with the proceedings of the Subordinate Courts and Tribunals. It is expected that the impugned proceedings challenged in the writ petitions having arisen out the petition of complaint and the FIR by an individual as well as by a designated Government official shall be dealt with by the concerned Magistrate/Court in accordance with the provisions as laid down in the Code. In case the concerned Magistrate/Court does not deal with the cases in accordance with law as provided in the Code or the accused are not treated in accordance with law, they shall have every right to take recourse to the provisions of the Code inclusive of section 561A thereof as observed in the impugned judgments. So, the question of superintendence and control by the High Court Division under article 109 of the Constitution over the Magistrate where the impugned proceedings/cases are pending by way of interference through judicial review does not arise at all...(12). TaeHung Packaging (BD) Limited Vs. Bangladesh, 10 ADC (2013)-Page 361. S. 561A-A criminal proceedings starts from the date of taking cognizance and if it is found that the allegations made in the FIR or petition of complaint do not disclosed any prima-facie case, against the accused-petitioner, continuation of such proceeding would be useless and preposterous; and as such, it is an abuse of the process of the Court rendering the same liable to be quashed. Shafiqul Alam (Md) Vs. State, 65 DLR (2013)-HCD-83. S. 561A-Fugitive from Justice-When a person wants to seek remedy from a Court of law, he is required to submit to the due process of the Court and unless he surrenders to the jurisdiction of the Court, the Court will not pass any order in his aid. The accused-petitioners did not obtain regular bail after expiry of the period of anticipatory bail and, as such, they become fugitive from the proceedings in the eye of law. Tajul Islam Vs. State, 65 DLR (2013)-HCD-336. S. 561A-There is no ingredients of offence under section 427 and 447 of the Penal Code or any other criminal offence against the accused-petitioners and the complainant has got no authority to prosecute the case in his official capacity against the policy of their controlling Ministry and hence the proceeding of the case is quashed. Abdus Sattar Khan & ors Vs. The State, 2 LNJ (2013)-HCD-293. S. 561A-Allegation under Section 420 of the Penal Code against a partner of a marriage-It appears that the accused petitioner did not invoke the provision of Section 241A of the Code of Criminal Procedure nor moved the Sessions Judge. under Section 439A of the Code of Criminal Procedure against framing charge. It has been settled that when the matter at the stage of taking deposition, the case should not be quashed unless the same is on preposterous facts apparent to the complaint petition. Mrs. Rehan Parvin Vs. The State & Anr (Criminal). 21 BLT (2013)-AD-11. S. 561A-Charge has already been framed, during trial the truth will come out, but in deciding the merit of an application under section 561A of the Code, there is no scope of going into the question whether the witnesses in the judicial inquiry had told the truth or not, the veracity of their statements can only be tested by cross-examining them. Jamila Khatuan Vs. State, 18 BLC (2013)-AD-223. S. 561A-Proceeding cannot continue against the petitioner alone as the abettor of the offence of criminal breach of trust without the principal offender of such offence. Zakir Hossain Vs. State (Criminal), 1 CLR (2013)-HCD-319. S. 561A: Existence of element of criminal breach of trust in the FIR: power under section 561A cannot be exercised by the High Court Division------ (Para--- 13). Badsha Miah Vs. State, 65 DLR (2013)-HCD-189. S. 561A-Allegation under section 500 of the Penal Code an abuse of the Process of the Court. Held; the news item had been published on the basis of press release issued by M. Misbahul Kabir, the publicity Secretary of Bangladesh Chattra Shibir Chittagong Metropolitan City Unit; but the maker of the press release has not been made an accused in the instant case. Apart from this, the news item was also published in the Daily Azadi and the Daily Sangbad, but the publishers and editors of those newspapers were not made accused in the instant case. In view of 9th Exception to Section 499 of the Penal Code, the alleged publication of news item does not fall within the mischief of the offence of defamation punishable under Section 500 of the Penal Code if the same is published in good faith and for public good without having any malice to cause any damage or loss to any body. We are led to hold that the proceedings initiated against the accused-petitioners cannot be sustained in the eye of law being an abuse of the process of the Court. Abul Asad & Anr Vs. The State & Anr, 21 BLT (2013)-HCD-463. S. 561A-It is by now well established that the inherent power under Section 561A of the Code can be invoked even after conclusion of trial, if it is necessary to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Therefore a convict may also invoke the inherent jurisdiction of the High Court Division if he can make out a case of coram non judice of the trial or that the facts alleged do not constitute any offence or that the conviction has been based on no legal evidence. Illias Mia @ Illias Vs. The State, 21 BLT (2013)-HCD-112. S. 561A-Allegation under section 406/420/462 of the Penal Code-Offence has disclosed in the Petition of Complaint. Held in this principle of quashment under section 561A of the Code of Criminal Procedure has all ready been settled. The truth of the allegation made against the accused-petitioner can only be determined after trial in accordance with law. Md. Biplob Ashraf & Ors Vs. The State & Anr, 21 BLT (2013)-HCD-166. S. 561A-In order to make out a case under section 561A for quashment the allegations in the F.I.R and finding in the charge-sheet should be taken in their face value and accepted in their entirety. Kazi Khairuzzaman & Ors, Vs. The State, 33 BLD (2013)-HCD-61. S. 561A-The Proceedings of a criminal case cannot be quashed on the basis of defence materials. Soumitra Sankar Das & Anr. Vs. The State, 33 BLD (2013)-HCD-105. S. 561A-The truth of the allegation made against the accused-petitioner can only be determined after trial in accordance with law. Md. Biplob Asharaf & Ors, Vs. the State & Anr, 33 BLD (2013)-HCD-168. S. 561A-(1) Whenever it is found that an appeal or for that matter, the inherent power under Section 561A of the Code provides an equally efficacious remedy, the exercise of the extraordinary powers of the High Court Division would not be available and any petition in this respect filed under Article 102 of the Constitution would be misconceived. His remedy, if any, under the facts and circumstances of the case, would be under the Code and not otherwise (Para 301). (2) An application under section 561A of the Code, under the inherent power of the High Court Division, would provide an equally efficacious remedy to that of the extraordinary power of the Court, as such, an application under Article 102 would be misconcieved and is liable to be dismissed. Siddique Ahmed Vs. Government of Bangladesh & Ors (Civil), 33 BLD (2013)-AD-204. S. 561A-In order to make out a case under section 561A for quashment the allegations in the FIR and finding in the charge-sheet should be taken in their entirety. Kazi Khairuzzaman & Ors. Vs. The State, 33 BLD (2013)-HCD-61. S. 561A read with Penal Code, 1860; Ss. 467/468/471 In the complaint petition, it is only alleged that the company of the petitioner has been shown as purchaser and no allegation whatsoever has been made against the petitioner; that the allegation of forgery is made in reference to the alleged power of attorney, but the company of petitioner is not a party to the power of attorney but the company of petitioner is not a party to the power of attorney, neither is there any allegation that the petitioner made, signed sealed or executed or caused to make, sign, seal or execute the said power of attorney and as such no offence under Sections 467/468/471 has been disclosed against the petitioner. Ahmed Akbar Sobhan Vs. State, 21 BLT (2013)-HCD-186. S. 561A read with Penal Code, 1860; S. 501 and 502-Whether letter Alif use in the subject matter, to hurt the religious feelings. The word Alif is one of the letter of the letters of used in the Holy Quran, Held: On plain reading of the allegation of complaint we find the word used in the subject matter of defamation is not a matter to hurt the religious feeling of the complainant in any manner whatsoever the same will come within the exception of Section 499 of the Penal Code. Therefore we hold that the continuation of the proceeding adopted and constituted in the aforesaid case is abused of the process of the Court. Thus the Rule having merit succeeds. Shafiqur Rahman & Ors Vs. The State, 21 BLT (2013)-HCD-203. S. 561A-read with Penal Code, 1860; S. 506 In the instant case there is no allegation that the petitioner and the complainant or wife of complainant ever met face to face and as such there is no scope to make amy criminal intimidation and in the instant case the complainant alleged that the petitioner made intimidation through "mustan" but under section 503 such intimidation 3 party is not sufficient to constitute any offence under section 506 of the Penal Code and further more the complainant did not name the said "mustan" neither mention any time and place and mode of such intimidation through 3rd party and as such no allegation under section 506 of the Penal Code has been disclosed in the FIR and charge sheets against the petitioner for which reason the proceeding of the said case under section 506 of the Penal Code is liable to be quashed. Ahmed Akbar Sobhan Vs. The State, 21 BLT (2013)-HCD-268. S. 561A-The settled principle of law is that a disputed question of fact cannot be determined by the High Court Division exercising extra-ordinary jurisdiction under section 561A of the Code. Such a question can be determined at the trial on taking evidence. Dr. Khandaker Mosharraf Hossain Vs. The State, 2 ALR (2013)-HCD-88. S. 561A- Inherent power of the Court It has been consistently held by the Appellate Division that the High Court Division shall sparingly exercise the extra-ordinary power under section 561A of the code that too under specific conditions. When there is an alternative remedy available under the Code, this power shall not be invoked in respect of any matter covered by any provision of the Code. It is only when the matter in question is not covered by any specific provision of the Code, in that case only section 561A can come into operation subject to the requirement that the exercise of this power must serve any of the three purposes mentioned in the section. The State Vs. Md. Aman Ullah Aman, 2 ALR (2013)-AD-23. S. 561A-Abuse of the processes of the Court In the facts and circumstances of the case the impugned proceeding against the such petitioner was found preposterous and further prolongation of the same would cause unnecessary harassment to the accused and would thereby amount to any abuse of process of the Court. The impugned proceeding is liable to be quashed in so far as it relates to the petitioner. Alhaj A.B.M. Mohiuddin Chowdhury Vs. The State, 2 ALR (2013)-HCD-66. S. 561A-The High Court Division is not invested with any appellate or alternative power under section 561A of the Code of Criminal Procedure..(3) The inherent powers of the High Court Division is neither an alternative nor an additional in its correct sense and is to be rarely invoked only in the interest of justice so as to seek redress of grievenances for which no other procedure is available. This section confers no new powers on the High Court Division. It merely safeguards all existing inherent powers possessed by the High Court Division to secure the ends of justice. The section provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived that passing of the Code...(4) The State Vs. Md. Ariful Islam @ Arif (Criminal), 10 ADC (2013)-Page No. 532. S. 561A-Where the very initiation of criminal case is under challenge we find no impediment to entertain this type of application filed under section 561 A of the Code of Criminal Procedure to invoke the inherent jurisdiction not only in order to prevent abuse of the process of the Court but also to secure the ends of justice. .....(11) M.A. Munim Vs. The State, 3 TLR (2013)-Page 428. S. 561A- Allegation under sections 420/467/468/471/109 of the Penal Code-In the instant case, it appears from the record of the case that no civil suit has been filed challenging the legality or propriety of the deed of sale allegedly executed and registered by the petitioner and others. It is not also a case of the petitioner that the informant as plaintiff earlier filed Civil Suit No. 95 of 2003 before the learned Assistant Judge, Dhamray, Dhaka-facie allegation of cheating and forgery against the petitioner who, in collusion with other accused, forged the power of attorney dated 29.12.1986 and sold out the case land to obtain wrongful advantage or to cause a legal injury to the informant impersonating herself as a constituted attorney. So, we find that there are prima-facie ingredients of cheating and forgery against the accused of the case, we are of the view that the present case does not came within the ambit of principles of quashing the proceeding under section 561A of the Code of Criminal Procedure, as the FIR discloses prima-facie ingredients of offences against the accused-petitioner and others under section 420/467/468/471/109 of the Penal Code. Most. Rabeya Begum Vs. The State & Anr, 21 BLT (2013)-HCD-361. S. 561A-It is well settled that the criminal proceedings should not be at all have the indefinite period for the cause of pendency of civil suit. Hedayet Ullah Vs. State, 18 BLC (2013)-HCD-272. S. 561A-A criminal case starts from the stage of taking cognizance. Unless cognizance is taken, the FIR named suspected persons are not accused before the Court in the eye of law. When no criminal case exists before the date of taking cognizance, the question of quashing such a non-existent criminal case by invoking section 561A of the Code does not arise at all. Sadek Hossain (Md.) Vs. State, 18 BLC (2013)-HCD-278. S. 561A-The Metropolitan Sessions Judge ought to have washed his hands of the matter and waited for the decision of the High Court Division with regard to cancellation of bail of the accused. Nazim Ahmed Vs. State, 18 BLC (2013)-HCD-511. S. 561A-Conviction under Section 19A and 19(f) of the Arms Act, 1878 along with Section 5 of the Explosive Substance Act, 1908. Mistaken Identity. FIR and Charge Sheet of the alleged case it appears that in no where the name of the present petitioner Md. Abul Khair Nadim alias Abul Khair, son of late Mostafizur Rahman of Village Musapur, P.S: Sandwip. Dist: Chittagong was mentioned is an accused of the case, rather the name of one Md. Nadim (in the FIR) Md. Nazim (in the Charge Sheet), son of Md. Habib Chowdhury, Village Harannia, P.S: Sandwip, District: Chittagong shown as the alleged accused No.2 of the case. Upon perusal of the impugned judgment and order of Conviction and sentence dated 20.01.1991 it also appears to us that in the impugned Judgment in no where the name of the present petitioner was mentioned as a convicted accused. In the said Judgment though one Md. Nazim (Nadim) was convicted but neither his fathers name nor his address was same to the petitioner, even though the name of the convicted accused was not same to the present petitioner. Having considered the above facts and circumstances of the case we are of view that the petitioner was not an accused of the aforesaid and he was wrongly taken into the custody in connection with the aforesaid case as a convicted accused which seems to be an abuse of the process of the Court; as such the proceeding initiated against the petitioner is liable to be quashed. Abul Khair Nadim @ Abul Khair Vs. The State, 21 BLT (2013)-HCD-372. S. 561A read with Penal Code, 1860; S. 447 For constituting offence under section 447 of the Penal Code, the accused must commit a criminal trespass within the meaning of section 441 of the Penal Code and a mere trespass in the property is not sufficient to constitute an offence of Criminal trespass rather a trespass into the land must be coupled with intention to commit an offence or to intimidate, insult or any person in possession of such property but in the instant case there is no injury to the property and no other offence has been disclosed, nor is there any allegation of committing on the land in question, furthermore admittedly the said land in question is vacant and therefore the complainant and his wife having not resided on the land in question, there is no scope to enter into the land in question for causing any injury or annoy to the complainant and therefore no offence against the petitioner under section 447 of the Penal Code has been disclosed and that mere trespass into the land is not any criminal offence and for this reason the allegation as disclosed in the FIR and charge sheet even if taken on its entirety are so preposterous that no offence has been disclosed against the petitioner, for which reason the proceeding of this case is liable to be quashed. Mojibur Rahman (Md.) Vs. State, 18 BLC (2013)-HCD-36. S. 561A-The investigation conducted by the 10 was incomplete and further investigation should be directed for securing the ends of justice. The quashment of the proceeding is not called for, since there are allegations of creation of false documents. Ahmed Akbar Sobhan Vs. State, 21 BLT (2013)-HCD-268. S. 561A-When First Information Report disclose a prima facie case against the petitioner, no application under Section 561A of the Code is at all maintainable. Dr. Khalekuzzaman Vs.State, 18 BLC (2013)-HCD-40. S. 561A-A proceeding can not be quashed on the ground of pre-maturity of the cause of action, even if the petition of complaint was filed before the expiry of 30 days from the date of the cause of action. Engineer. Afsaruddin Ahmed Vs. State, 18 BLC (2013)-HCD-1. S. 561A-Mr. Md. Helaluddin Mollah, the learned Advocate appearing on behalf of the petitioner submit that the case against the petitioner was false and concocted by the police for failure to pay a large sum of money as demanded by the police officer and for refusing to compromise the case concerning the murder of his own brother. He submits that the case was not proved beyond reasonable doubt by legal evidence. He submits that the petitioner was not named in the FIR and was not identified by the informant in the dock. He further submits that the conviction of the petitioner was based on his confessional statement which was extorted by police torture and is clearly exculpatory, and therefore, the High Court Division erred in accepting the Death Reference. He further submits that Article 103 of the Constitution has been amended by Act No. 14 of 2011 whereby it is now provided that if the High Court Division upholds the sentence of death or imposes the sentence of death or life imprisonment upon any accused then the accused shall be entitled to prefer appeal as of right before the Appellate Division. He finally submits that since the Constitution has been amended giving a beneficial right to the accused, the same right shall accrue to the petitioner although his appeal before the High Court Division was disposed of by a judgment and order which was passed before the amendment to the Constitution....(9). Dipak Datta Bhola Vs. The State, 10 ADC (2013)-Page-176. S. 561A Arms Act (XI of 1878) S 19A and 19(1)-Neither the seizure list witnesses nor the public witnesses were produced and examined before the Tribunal to prove the recovery of the Arms and Bullet from the exclusive control and possession of the petitioner. All the 7 prosecution witnesses are police personnel who proved the prosecution case but their evidence was not supported either by seizure list witnesses or by public witnesses. Non examination of important witnesses raise doubt about the prosecution case and the accused petitioner will get the benefit under section 114(g) of the Evidence Act. The prosecution has failed to prove recovery of Arms and Bullet from the exclusive control and possession of the petitioners. Md. Hasamul Islam Hanif @ Galcutta Hanif and Hanif Vs. The State, (Cri Misc), 2 LNJ (2013)-HCD-42. S. 561A-Mere denial of allegation cannot be taken into consideration in the S. 561A-The accused petitioner is a retired professor of Botany of a Government College who 67 years aged. It was not disclosed in the FIR that under what capacity the informant lodged complaint against the accused petitioner before the Wakf Administrator. This shows that the informant is being proceeding under section 561A of the Code. Abdul Wahab (Md) Vs. State, 18 BLC (2013)-HCD-382. The allegations brought against the petitioner are so preposterous and absurd that cannot these be believed for which the police also submitted the final report and as such the proceeding should be stopped in order to prevent the abuse of the process of the Court. Since the initiation of the proceeding is the product of falsehood and grudge and since no prima facie case against the petitioner has not been made out and facts as disclosed in the FIR are so preposterous that no proceeding can be taken against the petitioner Hence the proceeding is quashed. Rabeya Khanam Vs. The State, 2 ALR (2013)-HCD-5. S. 561A-If the Magistrate had passed an order of police remand despite the fact that the accused respondent had been suffering for ailment, the latter had his remedy to prefer a revision petition before the learned Metropolitan Sessions Judge against the said order but in presence of such specific remedy, how the High Court Division entertained the petition is not clear to us? This Division repeatedly observed that the High Court Division shall sparingly exercise this power and when there is alternative remedy this power shall not be exercised. The State Vs. Md. Aman Ullah (Criminal), 10 ADC (2013)-Page 263. Section 561A—Agreement to sell the land— Payment of Tk. 50,000 made in part performance of the contract—Whether delay in registering the sale-deed and delivering the property to the opposite parties or subsequent conduct in refunding the contract money constitutes an offence of criminal nature—Facts alleged in the FIR do not disclose any criminal offence— Transaction being of civil nature the continuation of proceeding against the petitioner is an abuse of the process of the Court. Abdul Bari vs Abul Hashem Mazumder 40 DLR 301. Section 561A—Whether a proceeding under section 561A of the Criminal Procedure Code is to be quashed depends upon the facts of the case itself. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—Delay is by itself no ground for quashing the criminal proceeding. But machinery of justice should not be allowed to harass any innocent person. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A, 195(1)(c) 200, 463, 465, 468, 419, 471, 475, 476 In view of the provision of clause (c) of section 195(1) of the Code of Criminal Procedure Respondent No. 2 may approach the court for taking appropri ate step against the appellant since he used a deed in the suit as genuine inspite of knowing the same being forged and then it is for the court alone that may decide as to whether it would initiate proceeding against the appellant for committing one of the offence or more as mentioned in clause (c) of section 195 (1) Cr. PC. Md. Abu Daud Sarder vs. The State (Md Ruhul Amin J) (Criminal)2ADC 784 Section 561A—When a prosecution arises out of ill-motive or improper motive the machinery of administration of justice need not be available to such person. Reason of delay in lodging FIR is unconvincing. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—The informant’s plea that he could not lodge FIR due to alleged lawlessness even after 1975 although there was constitutional government for over 4 years except a Martial Law Government for a brief period is unacceptable. The proceedings are quashed. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—Mere delay in lodging a complaint is not a ground for quashing a proceeding. There may be circumstances in which lodging of FIR as to commission of an offence may be delayed. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—Explanation for delay in lodging FIR was given, i.e. fear of life from very influential persons. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—Delay raises doubt about the truth of allegation. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—Principles upon which exercise of extraordinary powers under section 561A CrPC is made have been stated. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—Facts of the instant case do not bring it within the ambit of exceptional circumstances in which the extraordinary power of the Court may be exercised. Md. Shamsuddin vs State 40 DLR (AD) 69. Section 561A—A timely GD entry of course strengthens the allegation made in the complaint and its absence may create doubt about it; but doubt in the allegation is a matter to be considered at the trial only. Md Shamsuddin vs State 40 DLR (AD) 69. Section 561A—Despite earlier order of rejection of the prayer for quashment of the proceeding, the subsequent application will not operate as a bar for exercising the inherent jurisdiction under section 561A CrPC. AKMM Saleh vs State 45 DLR 386. Section 561A—On the death of principal offender possibility of proving the guilt of the abettor becomes bleak. AKMM Saleh vs State 45 DLR 386. Sections 561A—If the trial Court fails to perform its duly in respect of framing of charge and the charge is framed on insufficient materials High Court Division can investigate whether the charge is groundless. AKMM Saleh vs State 45 DLR 386. Section 561A—Cognizance taken and trial held in this case being without jurisdiction, the court may exercise its inherent jurisdiction under section 561A CrPC to prevent the abuse of the process of the Court. Khalilur Rahman vs State 41 DLR 385. Section 561A—View of the Additional judge not so perverse as to merit interference. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120. Section 561A—The fact that the accused were tried and found guilty and then unsuccessfully filed an appeal and a revisional application cannot be a ground, in the facts of the present case (i.e. absence of any legal evidence), for refusing to exercise the Court’s inherent power to secure the ends of justice by way of setting aside their conviction. Mofuzzal Hossain Mollah vs State 45 DLR (AD) 175. Section 561A—Quashing of criminal proceeding—The sword of prosecution hanging over the head of accused -petitioners for nearly 10 years without any fault on their part and they are suffering economically, mentally and socially—It is a sheer abuse of the process of the Court and for that reason the proceeding is to be quashed in respect of them. Md Mosharraf Hossain vs State 42 DLR 213. Section 561A—In a proceeding under this provision the court should not be drawn in an enquiry as to the truth or otherwise of the facts which are not in the prosecution case. HM Ershad vs State 45 DLR (AD) 48. Section 561A—Mere plea of right of private defence cannot be a ground for quashing the criminal proceeding, for such plea is to be established by the accused who takes it. A criminal proceeding is liable to be quashed only if the facts alleged in the First Information Report of complaint petition, even if admitted, do not constitute any criminal offence or the proceeding is barred by any provision of law. Where disputed facts are involved, evidence will be necessary to determine the issue. The appellants have produced an order of temporary injunction against the complainant’s party. This must be considered along with other evidence during the trial. Their application for quashing the proceedings is found to have been rightly refused by the High Court Division. SM Khalilur Rahman vs State 42 DLR (AD) 62. Section 561A—Quashing of proceedings for alleged breach of trust and cheating: Money claims, not the outcome of a particular transaction but arose after year-end accounting following regular business between the parties. If on settlement of accounts at the end of a period some money falls due to one party from the other party and the other party fails to pay the dues, such liability cannot be termed criminal liability. Allegation that dues were allowed to accrue dishonestly, neither attract an offence under section 420 nor under section 406 or under any other section. The whole allegation in complaint petition, even if true, cannot form basis of any criminal proceeding. The proceedings are quashed. Syed Ali Mir vs Syed 0mar Ali 42 DLR (AD) 240. Section 561A—The accused cannot challenge the entire criminal proceeding at a stage when the case is ripe for trial following framing of charge. When he has taken a specific defence against the charge on the basis of a GD entry he has to establish the same. The charge under section 420 Penal Code is upheld. Shafiuddin Khan vs State 45 DLR 102. Section 561A—Questions whether the occurrence was accidental and whether the petitioner had intention to commit mischief to the complainant needs evaluation of evidence to be led by the prosecution which cannot be stifled by exercising power for quashment. When allegations create both civil and criminal liabilities it is for the complainant to choose any or both of the forums for redress of grievance. Tofazzal Hossain Chowdhury vs Mir Amanullah 45 DLR 263. Section 561A—Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102. Section 561A-Prima-facie offence has been disclosed against the accused persons in the FIR and charge sheet and the tribunal having found prima-facie case framed charge against the accused persons. Falsity or truth of the allegation has to be decided at the trial in the light of the evidence adduced by the parties. Hasina Akhter vs Amena Begum (Criminal) 75 DLR (AD) 68 Section 561A-The High Court Division has not been empowered to usurp the jurisdiction of the trial Court invoking section 561A of the Code. Hasina Akhter vs Amena Begum (Criminal) 75 DLR (AD) 468 Section 561A—lt has been asserted that the FIR itself was lodged by the complainant after receiving an order from the Home Ministry and not on his own. A prosecution cannot be quashed just because it was initiated at the instance of the Home Ministry. The question of possession can only be decided on evidence and not on submission on law as to what constitutes possession. The question whether the proceeding should be quashed or not should be decided on facts alleged in the FIR and charge-sheet. The accused’s general denial that the facts disclosed in the FIR are not true will not do. To succeed, the accused must show that the facts alleged by the prosecution do not constitute any offence or that the prosecution is otherwise barred by law. Hussain Mohammad Ershad vs State 43 DLR (AD) 50. Section 561A—Quashing of proceeding— Court will be loath to stifle a prosecution at the initial stage unless facts are such as would attract inference that even upon admitted facts no case can be made out and continuation of the proceeding would be an abuse of the process of the Court. Al-haj Md Serajuddowlah vs State 43 DLR (AD) 198. Section 561A—Quashing of proceedings — Whether the untrue statement of the accused regarding his imported goods on which he has been prosecuted under the Customs Act is intentional or unintentional, bonafide mistake or a case of absence of knowledge is for the trial Court to decide on the basis of evidence that would be adduced—if the pending proceeding is stopped at this stage it would amount to stifling the proceeding in Limine. Atiqur Rahman vs AKM Fazlul Haque 43 DLR 49. Section 561A—Indictment proceeding against a detenu—Question of its legality or otherwise at the time when it was initiated and at a subsequent time—An order of detention would be deemed to be warrant of arrest from the Court of Magistrate; if the detenu would violate the warrant he would be a fugitive from justice. His failure to comply with direction to surrender, would immediately attract the mischief of prosecution and consequent punishment. The offence would be complete on failure to surrender, subject however, to the defence of impossibility of performance which is a matter of fact to be decided on evidence. Section 7(1)(b) is a punitive provision to come into play immediately after the lapse of time for surrender. The contention that the detention order being illegal the detenu had not rightly surrendered has little substance. It is not the order of detention but it is the fact of detention itself that matters. At the time it was initiated the proceeding was not prohibited by any law nor was it taken in violation of any law. It need not therefore be quashed at the present stage. Anwar Hossain Monju vs State 43 DLR 447. Section 561A—Petition of complaint contains allegations under sections 295A/298/109 Penal Code out of which, to initiate and continue with the proceeding, compliance of the provision of section 196 CrPC in respect of offence under section 295A Penal Code is necessary but no compliance is necessary in respect of offences under sections 258/109 Penal Code. Interference by way of quashing the entire proceeding is not called for. Name of the petitioner finds mention in he petition of complaint but on a reading of he same his complicity with commission of offence could not be traced out. The proceedings as against him is liable to be quashed in terms of the principles enunciated in 28 DLR (AD) 38. Jamir Sheikh vs Md Fakir 43 DLR 417. Section 561A—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death chning the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs Stare 43 DLR 60. Section 561A—Inherent power under this section though unlimited should be exercised only in 3 cases when no other alternative remedy is generally available under the Code to make such order as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure he ends of justice. In the peculiar facts and circumstances of the case, any interference with the impugned order of the learned Magistrate at this belated stage will not serve any of the purposes of this section, rather such interference may cause undue harassment to the opposite party and defeat the ends of justice. State vs Satya Narayan Sarada 43 DLR 529. Section 561A—The decision in this case having depended on findings of facts as to whether the seized arms were recovered from the possession of the petitioner, whether the same came within the exception provided for and covered by amnesty, if any, declared by the Government, the extraordinary power to prevent the abuse of the process of the Court is not required to be exercised. HM Ershad vs State 43 DLR 150. Section 561A—Allegation made in the FIR having not disclosed any offence of extortion as deemed under section 383 Penal Code, the impugned proceeding against the accused for his punishment under section 387 Penal Code is quashed. Abul Bashar vs State 44 DLR 391. Section 561A—Default in delivery of share certificate—Quashing of proceeding for such default—It is not the complainant’s case that his share certificates were not made ready within time. Once the share certificates are completed and made ready within time, the liability of the accused persons ends. The law does not provide that the certificates are to be made ready for delivery to the complainant. Non-delivery of the share certificates is not an offence and the proceeding is liable to be quashed. Muhammadullah vs Makbul Ahmed 44 DLR 107. Section 561A—Writ Jurisdiction and inherent jurisdiction of the High Court Division, applicability of—If there was any statutory provision of appeal and revision for setting aside the proceedings in question against the petitioner, then the question whether any equally efficacious adequate alternative remedy is available to him would act as a bar to move the High Court Division under the writ jurisdiction. Inherent jurisdiction of the High Court Division under section 56 1A CrPC cannot be said to be an alternative remedy to the Court’s writ jurisdiction. Anisul Islam Mahmood vs Bangladesh 44 DLR 1. Section 561A—Inherent jurisdiction—It is not an alternative jurisdiction—Inherent jurisdiction for quashing of criminal proceedings should not be invoked where some other remedy is available. This is not an alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or provided by the Code itself. This power cannot be so utilized as to interrupt or divert the ordinary course of criminal procedure. MM Rahmatullah vs State 44 DLR 576. Section 561A—Quashing of criminal proceeding whether can be allowed under writ jurisdiction—Labour Court being a court subordinate to the High Court Division quashing of criminal case can appropriately be prayed before the criminal bench of the Court which is the efficacious remedy under the Code of Criminal Procedure. SM Shafiul Azam vs Director of Labour 44 DLR 582. Section 561A—Though the inherent power of the High Court Division is undefined and unlimited but this inherent jurisdiction should not be generally and indiscriminately invoked particularly when some other remedy is available. The jurisdiction is not alternative or an additional one but it is I jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available nor has been provided in the Code itself. Engineer Afsaruddin Ahmed vs State 46 DLR 496. Section 561A—Inherent jurisdiction of Court—Whether such jurisdiction is applicable in cases from which appeals are barred by limitation—Section 561A CrPC cannot be conceived to give the High Court Division jurisdiction to retrieve the cases from the moratorium after they have been barred by limitation. Then, in the memo of the appeal taken or in the submission no ground has been taken that the Tribunal had no jurisdiction to try the case or that it arrived at absurd or preposterous conclusion from the evidence on record. The section 561A of the Code of Criminal Procedure has not given any new jurisdiction to the High Court to override other laws. It is easy to see that this Court cannot have any inherent jurisdiction to strike down the law of limitation. The law of limitation is so inexorable that a person loses his good title on account of law of limitation. It may be desirable that something is done for the redress of the accused who lost their right of appeal and has very good case in their defence, but it is for the legislature to do. Mohammad Ali vs State 46 DLR 175. Section 561A—There is nothing in precluding a criminal case on account of a ci suit pending against the petitioners on the facts. The criminal case stands for the offend while the civil suit is for realisation of money both can stand together. Khondaker Mahatab uddin Ahmed vs State 49 DLR (AD) 132. Section 561A—The complainant has the option to activate prosecution of the petitioners under the Immigration Act, 1982 as well, but if the allegations contain ingredients under the Penal Code, the complainant’s case before the Magistrate cannot be stifled by quashing. Noor Jahan Begum vs State, being represented by the Deputy Commissioner 49 DLR (AD) 106. Section 561A—The Drug Control Ordinance is an additional forum for trying drug offences. Taking of cognizance and framing of charge by the Tribunal under the Special Powers Act in respect of offences relating to possession of spurious medicine, are not illegal and the prosecuting thereof are liable to be quashed. Ordinance No. VIII of 1982 has been promulgated not with a view to excluding all other trials on the same offence but as an additional forum for trying drug offences. If the same offence can be tried by a Special Tribunal under the Special Powers Act it cannot be said that the accused- petitioner has an exclusive right to be tried by a Drug Court only. As on the petitioner’s own showing he has been charged only under section 25C(d) of the Special Powers Act by the Senior Special Tribunal, we do not find any illegality in the proceedings. Ashraf Ali @ Asraf Ali vs Slate 49 DLR (AD) 107. Section 561A—It cannot be said that the Court was wrong in holding and acting on the premises that the dispute between the parties arising out of a joint stock should be settled in the civil Court and the criminal proceeding be quashed. Ansarul Haque vs Abdur Rahim 49 DLR (AD) 145. Section 561A—The Sessions Judge having passed an order under section 439A CrPC setting aside finding of the Magistrate under section 145 CrPC and all remedies for the first party being exhausted, the party is competent to invoke section 561A [1984 BLD (AD) 165 ref] Soleman (Md) vs Ahbarek Khalifa 46 DLR 298. Section 561 A—Quashing of a proceeding can be made even at the initial stage of a case, and when facts, and circumstances demand, even at the stage when cognizance is taken by the, Magistrate in a case under the Penal Code. Mubashwir Alli vs State 46 DLR 535. Section 561A—The exercise of power under this section is not totally barred against an order passed by the Sessions Judge under section 439A CrPC. It is to be seen whether the petitioner invokes this Court’s revisional jurisdiction under the garb of an , application under section 561A CrPC. If the condition of this section is fulfilled the High Court Division may exercise its power thereunder. Fatema Begum vs Gageswar Nath and State 46 DLR 651. Section 561A—When exercising jurisdiction under this section, the High Court Division will not embark upon an enquiry whether the evidence in question is reliable or not which is a function of the trial Court. Quashment of criminal proceeding before commencement of trial may amount to stifling the prosecution. Abu Bakar vs State 46 DLR 684. Sections 561A, 438 & 439A—Reference—Since the petitioner could not make out a case of quashing of the proceedings and since no such power is vested in the Sessions Judge the impugned order refusing to make a reference to the High Court Division suffers from no illegality. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127. Section 561A—In view of the complainant’s case that he delivered goods in good faith on the accuser’s inducement of part payment and promise to pay the balance price within 3 days but subsequently betrayed, it cannot be said there is no prima facie case against him—the High Court Division rightly refused to quash the proceeding. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu 46 DLR (AD) 180. Section 561A—The inherent jurisdiction of the High Court Division would be available even to a party who had lost in revision before the Sessions Judge. In this connection this Court, however, referred to the limited scope of section 56 1A and observed that this inherent power is neither an additional power nor an alternative power of the Court, that this power is to be exercised very sparingly keeping itself within the bounds of this provision and that a revision petition cannot be brought in the camouflage of a petition under section 561A. Sher Ali vs State 46 DLR (AD) 67. Section 561A—The inherent power under section 561A can be invoked at any state of the proceeding, even after conclusion of trial, if it is necessary to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Appellant was convicted solely on the statement of a co accused who, however, did not implicate himself in the crime but shifted the blame upon others including the appellant. This Court found that there was no “confession” at all as its maker did not implicate himself in the crime and further that this statement was not corroborated by any other evidence and consequently the conviction was based on ‘no evidence’ which could be quashed by the High Court Division in exercise of its inherent power under section 561A. Sher Ali vs State 46 DLR (AD) 67. Section 561A—The inherent power may be invoked independent of powers conferred by any other provisions of the Code. This power is neither appellate power, nor revisional power, nor power of review and it is to be invoked for the limited purposes. This power may be exercised to quash a proceeding or even a conviction on conclusion of a trial if the Court concerned got no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence, or the conviction has been based on ‘no evidence’ or otherwise to secure ends of justice. Sher Ali vs State 46 DLR (AD) 67. Section 561A—The decision of the judges that the application under section 561A is liable to be rejected for lack of jurisdiction is totally erroneous and it is held that the High Court Division has jurisdiction to entertain such an application but whether interference will be made in a particular case is altogether a different matter.The general principle is that the power being extraordinary its exercise also will be rarity. The “total bar” in section 43 9(4) of the Code, as spoken of by the learned Judges, is only against further revision—that is, revision under section. 439(1) of the Code and not against the Court’s inherent jurisdiction which is altogether different from any other jurisdiction under the Code. The High Court Division, on the one hand, willfully disregarded this Court’s decisions, and, on the other hand, flouted Article 111 of the Constitution. This cannot be countenanced and must be disapproved strongly. Sher Ali vs State 46 DLR (AD) 67. Section 561A—A litigant should not be allowed to move this Court under section 561A of the Code when other remedy is available to him under the Code. Section 561A of the Code is to be taken resort to only to prevent abuse of the process of Court or to secure the ends of justice and not to allow abusing the process of the Court to stop trial of the cases for about a decade and then to get acquittal in the trial Court afterwards for want of evidence occasioned by lapse of long time. Maksudur Rahman Hilaly vs State 47 DLR 314. Section 561A—An appeal filed under section 30 of the Special Powers Act but not admitted for hearing as it was found barred by limitation can be allowed to be converted to a miscellaneous case under section 561A of the CrPC for securing the ends ofjustice. Sohail Ahmed Chowdhury vs State 47 DLR 348. Section 561A—After conversion of an appeal to an application under section 561A CrPC the application can be disposed of by the same Bench without issuing a Rule afresh—technicalities of procedure may be avoided with a view to securing the ends of justice. Sohail Ahmed Chowdhury vs State 47 DLR 348. Section 561A—This Court has inherent jurisdiction to set aside its own judgment to secure ends of justice or to prevent abuse of the process of any Court under section 56lA of the Code of Criminal Procedure. Serajul Islam vs Fazlul Hoque 47 DLR 480. Section 561A—This Court in exercise of its extraordinary power of quashing cannot usurp the jurisdiction of the trial Court to receive and examine evidence adduced by the accused in his defence to exonerate him from the charge brought against him. Shyamal Chandra Das vs State 47 DLR 474. Section 561A—This section corresponds to section 151 of the Code of Civil Procedure with almost similar principle. Sohail Ahmed Chowdhury vs State 47 DLR 482. Section 56 lA—Inherent jurisdiction— Extent of applicability—Inherent jurisdiction of the High Court Division which is generally exercised for preventing the abuse of the process of the Court in respect of the pending proceedings can also be invoked in appropriate cases for securing the ends of justice in respect of a proceeding which has reached its finality. Sohail Ahmed Chowdhwy vs State 47 DLR 482. Section 561A—Finding of guilt of accused person cannot be based merely on high probabilities but should be rested surely and firmly on the evidence and mere conjecture and hypothesis cannot take the place of proof.In the present case the non production of seized gold for which no explanation has been furnished by the prosecution, failure of the prosecution to test the seized gold by an expert are sufficient to show that the judgment and order of conviction is based on surmises and not on evidence and hence liable to be quashed. Sohail Ahmed Chowdhury vs State 47 DLR 482. Section 561A—Interference of this Court in exercise of its inherent power under section 561A of the Code at the initial stage of investigation or before taking cognizance or framing of charge will be justified only when this Court finds that the allegations made in the First Information Report or petition of complaint do not constitute the offence alleged against the accused or that on the admitted facts no case can stand against the accused. Santosh Bhusan Das vs State 47 DLR 519. Section 561A—That a Minister is personally interested in the case against the accused, though found to be true, by itself is not sufficient to conclude that the allegation against the accused is false. The High Court Division observed rightly that the proceeding cannot be quashed as it remains for the prosecution to establish the allegation by adducing evidence in trial. Engineer Afsaruddin Ahmed vs State 47 DLR (AD) 10. Section 561A—In view of the unusual facts and circumstances of the case i.e. reinvestigation by the Criminal Investigation Department to be a malafide act to create cleverly a plea of alibi for a particular accused the order of the High Court Division allowing quashment need not be interfered with. Afia Khatoon vs Mobassawir Ali 47 DLR(AD) 62. Section 561A—In a rule for quashing the proceeding the Court cannot enter into the merits of the allegations. Khorshed Alam vs Azizur Rahman 48 DLR 36. Section 561A—Even if accounts of the company were audited and approved by the shareholders the same cannot exonerate the persons in charge of the management of the company from facing trial on the allegation of misappropriation of the fund. Khorshed Alam vs Azizur Rahman 48 DLR 36. Section 561A—Fresh trial of the petitioner for the negligence of the presiding officer concerned would be an unnecessary harassment to him and an abuse of the process of the Court. Question is whether for such negligence of the presiding officer concerned petitioner should suffer a fresh trial for no fault of his own and procedural technicalities should be allowed to prevail over the ends of justice. In this connection we like to mention that no complaint was made by the Public Prosecutor before the said Tribunal before passing of the said order that no trial was held culminating in pronouncement of judgment on 25-1-89 in open Court acquitting the accused petitioner. In the above facts and circumstances we are of the view that the petitioner should not face any fresh trial for the negligence of the presiding officer. Adhir Kumar Shaha vs State 48 DLR 87. Section 561A—In view of existing legal position owing to the enactment of sections 265C & 241A CrPC an accused can prefer an application under section 56lA if he became unsuccessful in his application either under section 265C or section 241A. Otherwise his application under section 561A would be premature. Liton vs State 48 DLR 102. Section 561A—Even when the seized documents placed before the Court were seized illegally the Court cannot but consider those as relevant to the matter in issue and no inherent jurisdiction of the Court could be exercised for a discussion on evidence. Moudud Ahmed vs State 48 DLR 108. Section 561A—Submission of charge-sheet beyond the specified time of 30 days under the Anti-Terrorism Act is illegal and, as such, the proceeding cannot proceed in the Anti-Terrorism Tribunal. Shahidullah Kazi, Amjad Hossain vs State, Abul Kasem 48 DLR 178. Section 561A—Since the jurisdiction of the criminal Court to draw up proceedings under section 145 of the Code is ousted as the civil Court is in seisin of the subject matter of the dispute the entire proceeding in question appears to be without jurisdiction. Jasimuddin vs Md Humayun Kabir 48 DLR 578. Section 561A—Examination of the existing materials on record taking into account the defenses that the petitioner might offer at the trial, whatever be the merit of such an exercise, is certainly rot the method of disposal of an application under section 561A moved after framing of charge in the case. After framing a charge, an application under section 561A CrPC to quash the proceedings is still available to the accused-petitioner on the ground that the allegation of facts even if true do not support the accusation or any other offence against him. The charge itself may be impugned but it is not the function of the trial Court while framing charge or the Court exercising jurisdiction under section 561A CrPC to examine the admissibility, relevance, propriety or sufficiency of materials. For, all these questions, especially in a criminal trial, are mixed questions of fact and law which cannot be resolved in an abstract manner without the facts surfacing at the trial. Moudud Ahmed vs State 48 DLR (AD) 42. Section 561A—A wide conclusion that after framing of charge no application under sections 561A CrPC lies should be read in the observation of the High Court Division—”I do not agree with the learned Counsel of the petitioner that at this stage, after framing of charge, the proceedings cannot be proceeded with”. Moudud Ahmed vs State 48 DLR (AD) 42. Section 561A—There may be cases where allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, and in such cases it would be legitimate for the High Court Division to hold that it would be manifestly unjust to allow process of the criminal Court to be issued against an accused person. The High Court Division may interfere under section 561A even during Police investigation cognizable offence is disclosed and still more if no offence of any kind is disclosed because in that case the Police would have no authority to undertake an investigation. But the usual and well settled practice is that a criminal proceeding can only be quashed after cognizance has been taken and process issued thereupon subject to the fundamental principle that the power of quashing is and should be very sparingly exercised and only to prevent the abuse of the process of the Court. Syed Mohammad Hashem vs State 48 DLR (AD) 87. Section 561A—A Criminal Proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for prosecution The High CourtDivision deviated from a well known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case. Rehela Khatun vs Abul Hassan 48 DLR (AD) 213. Section 561A—A careful reading of sections 29,463 and 464 of the Penal Code together would clearly show that a false document must have been actually made and that mere taking of a signature on a blank paper without writing anything on that paper does not make it a document. Since the complainant petitioner did not disclose the nature of the document allegedly created the allegations made do not constitute the offence under section 465 of the Penal Code and as such, the impugned proceeding is liable to be quashed. Syed Khalilullah Salik alias Juned vs Haji Md Rahmat Ullah 2. Slate 49 DLR 16. Section 561A—Rejection of writ petitions against criminal proceedings on grounds of availability of alternative remedy by way of quashing of the proceeding cannot be a bar against further writ petitions against the same criminal proceedings when the very legality of the institution of the proceedings have been challenged. Shahriar Rashid Khan vs Bangladesh 49 DLR 133. Section 561A—The present case under sections 4(2) and 5(2) of Act II of 1947 initiated by the Bureau of Anti-Corruption involving only private individuals is not maintainable in law and is therefore, liable to be quashed. Golam Abdul Awal Sarker vs State 49 DLR 95. Section 561A—In the circumstances that the petitioner has all along flouted summons and warrant and never asked for bail even in the High Court Division, it is difficult to entertain his application for quashing of proceeding before he surrenders to the Court. We have also seen from the affidavit and submission that the petitioner is an old man and professor of a University suffering from ailments and is not able to go to Gopalganj. Considering the nature of the case we direct that the case may be withdrawn from the Magistrate Court Gopalganj to the Court of Chief Metropolitan Magistrate, Dhaka where the petitioner must surrender and obtain bail. Dr Ahmed Sharif vs State 49 DLR 100. Section 561A—Where a prima facie case of criminal offence has been clearly made out, the High Court Division in a proceeding under section 561A CrPC has little scope to scrutinise the truth or otherwise of any document or other evidence, which may be used as a defence in a criminal proceeding. Kamrul Islam vs Atikuzzaman 49 DLR 258. Section 561A—Institution of a money suit for recovery of the money will not stop prosecution for an offence committed in the eye of law. Nurul Islam vs State 49 DLR 464. Section 561A—When in the FIR and before the Court the informant stated that the petitioner had illicit intercourse with her against her will and the evidence disclosed a case against, the Court cannot shift the evidence adduced from the side of the prosecution. Alamgir Hossain (Md) alias Alamgir vs State 49 DLR 630. Section 561A—The criminal proceeding in the instant case is required to be quahed to secure the ends of justice so that title may be set at right once and for all by the civil Court. Sabdul Ali vs Md Mabed Ali Sarker 50 DLR 146. Section 561A—The notice for talak was issued on 26-6-95, but the petitioner took the second wife on 29-5-95, about a month before the service of the notice, not to speak of expiry of 90 days as provided for under section 7 of Muslim Family Laws Ordinance to make the pronouncement of talak effective. As such the application for quashment of proceedings for punishment of the petitioner is summarily rejected. AKM Rafiqul Alam vs State 50 DLR 265. Section 561A—The Chief Metropolitan Magistrate has avoided passing of orders on flimsy grounds and, as such, the question of approval of the District Magistrate for such permission does not arise. In such a case, the under- trial prisoner could invoke the inherent jurisdiction of the Court for ends of justice. The under trial prisoner in this case is entitled to Class I status in the jail under the provisions of Paragraph 910 of the Jail Code and the authority is directed to allow the status due to him. Major (Retd) M Khairuzzaman vs State 50 DLR 283. Section 561A—Taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings. On a reading of the petition of complaint it is difficult to hold that the allegations and the complaint do not disclose any offence and the continuance of the proceeding will be a flagrant abuse of the process of the Court and the same is to be buried before trial and the inherent power which are in the nature of extraordinary power has to be passed in aid. Rustom Ali Matubbar vs Md Salahuddin 50 DLR 301. Section 561A—From the petition of complaint we find no allegation of initial deception on the part of the accused-petitioner or entrustment of any property. Ingredients of the offence of cheating and criminal breach of trust having not been disclosed in the petition of complaint the same is liable to be quashed. Abdul Hai vs State 50 DLR 551. Section 561A—Whether in the facts of a particular case a higher section is attracted can be considered at the time of framing of charge. It is not necessary to amend the charge-sheet to include a higher offence. Mokaddesh Mondal vs State 50 DLR (AD) 186. Section 561A—Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial deception has also been alleged. The High Court Division rightly quashed the proceeding. Rafique vs Syed Morshed Hossain 50 DLR (AD) 163. Section 561A—Subsequent allegations will not save limitation for prosecution—The requirement under the law is that the complaint against nonpayment of money has to be filed within one month of the date on which the cause of action arises—The High Court Division wrongly rejected the application for quashing. SM Anwar Hossain vs Md Shafiul Alam (Chand) 51 DLR (AD) 218. Section 561A—A convict may invoke the inherent jurisdiction of the Court if he can make out a case of Coram non judice of the trial Court or that the facts alleged do not constitute any offence or that the conviction has been based on no legal evidence or otherwise for securing the ends of justice. Shahidul vs State 51 DLR 222. Section 561A—A person having had prayed for rejection of his petition or appeal can not be given such latitude as to invoke the aid of section 561A CrPC. Shamsur Rahman alias Shamsu Moral vs State 51 DLR 338. Section 561A—When the allegations made in the First Information Report or petition of complaint do not disclose any offence, an accused should not be compelled to wait till the stage of hearing under section 241A. Habib vs State represented by the Deputy Commissioner 52 DLR 105. Section 561A—When the petitioner’s conviction is not based on any legal evidence and it is based only on the statement of the victim made under section 164 CrPC the judgment under Nano-Shishu Nirjatan Ain is quashed. Azibor Mollick vs State 52 DLR 576. Section 561A—Allegation of giving instruction over telephone cannot be the basis of proceeding against the petitioner under section 186 of the Penal Code. The identity of caller cannot be proved and, as such, continuation of the proceeding shall be abuse of the process of the Court. Major General (Retd) Mahmudul Hasan vs State 52 DLR 612. Section 561A—Where a criminal proceeding has been initiated in a competent court and it cannot be shown that such proceeding is allowed to continue in “abuse of process of court” and need be cjuashed “for ends of justice” dispensation of personal appearance of the accused before such court does not fall within the meaning of section 561A CrPC. Shahid Miah vs State 53 DLR (AD) 11. Section 561A—The High Court Division as the Court of revision must be deemed to have power to see that a court below does not unjustly take away the character of a party or of a witness or a counsel before it. Bibhu Ranjan Das vs Hakim Ali 53 DLR 114. Section 561A—Normally the Court does not interfere with the task of a public prosecutor as to how he conducts the prosecution but this court cannot overlook his functions even after publication of repeated articles in newspapers alleging serious allegations against him. Daily Star and Protham Alo Patrika vs State 53 DLR 155. Section 561A—Wheat was supplied by the complainant on credit on the request of the petitioner who is close relation of the complainant. Under such circumstances a request cannot be considered as ‘false representation’ or ‘inducement’. The criminal proceeding is therefore quashed. Motaleb Hossain vs State 53 DLR 198. Section 561A—As some payments were made by the accused persons, it cannot be said that there was any initial deception on the part of the accused persons. Under such circumstances, we are of the view that there are no elements o the offence under sections 406 and 420 of the Penal Code and, as such, continuation of the proceedings will be an abuse of the process of the Court. Abdul Rouf vs State 53 DLR 283. Section 561A—Even though the case is pre- mature and it was filed before the expiry of 15 days from the date of receipt of the notice, the proceeding is not liable to be quashed. Satya Narayan Poddar vs State 53 DLR 403. Section 561A—When allegations show that the accused had initial intention to deceive, criminal case should not be quashed on the plea of pendency of civil suit for realisation of the money in question. Abdul Bari vs State 53 DLR 410. Section 561A—In the, absence of definite allegation it cannot be held that taking of money as loan and subsequent failure or refusal by itself shall constitute criminal offence. The continuation of the present proceeding will be an abuse of process of court and harassment to the petitioner. The proceeding is thus liable to be quashed. Abdul Mannan Sarker vs State 53 DLR 565. Section 561A—Admittedly there was a transaction between the parties and the petitioner issued the cheque in question but the law of limitation stands as an impediment to proceed further with the case in view of clause (b) of section 138 and clause (b) to section 141 of the Act. Time is a great factor of human life specially when it comes into play for legal purpose. The proceeding of the CR case is quashed. Abdus Salam vs Md Munshi Rashed Kamal 54 DLR 234. Section 561A—High Court Division cannot sift evidence like the Court of appeal nor give benefit of doubt to an accused in exercise of power under section 56lA of the Code. Delower Hossain @ Ali Hossain Bhuiyan vs State 54 DLR 114. Section 561A—There is no distinction between principal in the first degree’ and ‘principal in the second degree.’ Under section 111 of the Penal Code an abettor is liable for a different act if that was probable consequence of the abetment. This is applicable to the accused guarantor. Islami Bank Bangladesh Ltd vs Md Habib 55 DLR (AD) 19. Section 561A—The High Court Division found that the complaint petition discloses an offence of inducement by the accused to part with money. By such inducement, the complainant paid money to the accused on the undertaking by the latter to repay the same as and when complainant demanded it. But the accused misappropriated the money by issuing cheques which were dishonoured. This establishes prima facie case of deception. Delwar Hossain vs Rajiur Rahman Chowdhury 55 DLR (AD) 58. Section 561A—Under section 138 of the Negotiable Instruments Act an offence is committed if a cheque is dishonoured and if payment is not made within 15 days after receipt of a legal notice. It is a settled law that criminal proceeding can be proceeded independently of the civil suit. Monzur Alam vs State 55 DLR (AD) 62. Section 561A—Where the prosecution upon exhausting all processes to secure attendance of witness is not in a position to say if any witness will be available at all. In a case of such extraordinary kind the question of delay in considering the, prayer for quashing of the proceeding may reasonably weigh with the Court. Bangladesh vs Md Amjad Ali Mridha 56 DLR (AD) 119. Section 561A—Once quashing of proceedings of criminal case on the ground of delay is made general that shall destroy the concept of administration of criminal justice and finally lead to anarchy. Bangladesh vs Md Amjad Ali Mridha 56 DLR (AD) 119. Section 561A—There is no bar for the complaint case against the respondent to proceed side by side with the winding up proceeding of the company owned by the complainant-petitioner and the convict-respondent. Amir Hossain vs MA Malek 56 DLR (AD) 146. Section 561A—To meet the ends of justice the conviction under section 4 of the Anti- Terrorism Act is maintained but the sentence of rigorous imprisonment for life is modified to 10 years rigorous imprisonment with fine as ordered. Jahangir Alam vs State 56 DLR (AD) 217. Section 561A—Cheques were presented to the bank twice within six months from the date it was drawn—Computation of 15 days for serving notice should be done from the date on which the cheques lastly returned by the bank—This having were been done the application under section 561A of Code of Criminal Procedure is misconceived. Habibur Rahman Hawlader vs State 55 DLR 199. Section 561A—The petitioner would get opportunity to raise the point whether the cheque was presented within time at the time of framing charge and the question when the cheque was presented to the bank for the 1st time cannot be decided in this application under section 561A of the Code of Criminal Procedure which is a disputed question of fact. Hasibul Bashar (Md) vs Dilshed Huda 55 DLR 200. Section 561A—The second first information report lodged is still under investigation and no police report has yet been submitted and, as such, it is not a judicial proceeding pending before a Court. Therefore, the same cannot be quashed under section 561A of the CrPC. It will be up to the Court to decide which one of the police reports he would accept after considering the entire facts of the case. Yasinullah vs State 55 DLR 393. Section 561A—Since there is a claim and counter-claim between the parties this criminal case should not be allowed to proceed and they be given an opportunity to sort out claims in the Civil Court. Delwar Hossain Sowdagar vs State, represented by the Deputy Commissioner 55 DLR 5. Section 561A—Disputed facts cannot be decided when exercising a jurisdiction under section 561A of the Code. This is a function of the trial Court which would decide appropriately those facts on the basis of the evidence which will be adduced by the parties in the case. Amal Cabraal vs Golam Murtaza 55 DLR 492. Section 561A—Non-compliance of the conditions of the ‘আপোষনামা’ regarding settling of the dispute arising out of an agreement to purchase a building does not attract the ingredients of the provision of sections 406/420 Penal Code. The allegation made in the first information report discloses a civil liability for which the criminal proceeding cannot but be quashed. Ashraf Miah vs State 55 DLR 509, Section 561A—Criminal intention is sine qua non for an offence under section 5(1) of the Prevention of Corruption Act, 1947. When a decision is taken collectively or even individually by following the rules of procedure or the rules of business criminal intention behind such decision should not normally be inferred. Begum Khaleda Zia vs State 55 DLR 596. Section 561A—The allegation as depicted in the complaint is an outcome of a typical partnership business transaction which is civil in nature and, as such, continuation of criminal proceeding against the petitioner certainly tantamount to abuse of the court and law and, as such, it should be quashed. Dr S Ashraf Ali vs Md Ahsan Habib and the State 56 DLR 169. Section 561A—Claim of ownership —Since both the accused-petitioner and the opposite party-informant claimed ownership of the truck, the matter should be fought out before the trial Court during the time of trial which cannot be considered in an application under section 56lA of the Code. Mohammad Syed vs State, represented by the Deputy Commissioner 56 DLR 210. Section 561A—Preventing abuse of the process of Court—The Chief Metropolitan Magistrate/Metropolitan Magistrate is directed not to entertain any application for showing the petitioner shown arrested in other cases which shall be forthcoming and not to make any order for sending him on remand from jail custody or for authorizing his detention in police custody for a period of two months from date, so that the petitioner on being informed about any other cases can voluntarily surrender before the Court. Nurul Islam Babul vs State 56 DLR 347. Section 561A—There is vague and unspecific allegation of torture (নির্যাতন) Mental or physical torture (নির্যাতন)and causing hurt or injury (আহত করা বা জখম করা) are not the same act. The allegation of torture does not mean causing hurt. Thus the vague and unspecific allegation of torture made in the First Information Report does not attract an offence under section 11 (kha) of the Ain. So, the allegations made in the first information report, even if are taken as true, do not constitute an offence punishable under section 1 l(kha) or 1 l(kha)/30 of the Ain. Therefore, the proceeding should be quashed to prevent the abuse of process of the court and for ends of justice. MM Ishak vs State 56 DLR 516. Section 561A—This court not being, a court of appeal has hardly any scope to sift and assess the evidence like a court of appeal in its extraordinary jurisdiction. Ayub Ali vs Abdul Khaleque 56 DLR 489. Section 561A—This Court has always disfavored to grant relief in its extraordinary jurisdiction under section 561 A to an absconder who does not approach the Court with clean hands. Ayub Ali vs Abdul Khaleque 56 DLR 489. Section 561A—The order showing arrest of the present petitioner in connection with Special Tribunal Case No. 41 of 1996 passed in NGR Case No. 124 of 2002 on 5-1-2003 and the custody warrant issued against him on 6-1-2003 having found to have been passed illegally the same are quashed. Azad Hossain vs State 56 DLR 602. Section 561A—Admittedly, in the present case the cheque was presented to the bank after expiry of 6 months from the date of drawing of the cheque. So, obviously this case under section 138 of Negotiable Instruments Act is not maintainable in view of the restriction imposed by proviso (a) to the said section. So, the proceeding is liable to be quashed. MA Mazid vs Md Abdul Motaleb 56 DLR 636. Section 561A—In the background of the facts this is not a case of exceptional nature calling for quashing on the ground of delay or for exercise of discretion or of doing complete justice. State vs Md Arab Ali, Ex-Manager, Rupali Bank 57 DLR (AD) 102. Section 561A—Frorn the first information report it appears that contents thereof even if accepted in its entirety no prima fade case is disclosed and, as such, the High Court Division did not commit any illegality in passing the impugned judgment and order quashing the proceeding. State vs Md Nasim 57 DLR (AD) 114. Section 561A—Jn spite of limitations the Court can exercise inherent jurisdiction to see whether the trial Court looked into the relevant law and the materials to connect the accused with the offence leading to their prosecution in order to prevent abuse of the process of the court or otherwise to secure the ends of justice. Abdur Rahman Dhali vs State 57 DLR 17. Section 561A—When the allegation made in the first information report or petition of complaint or the charge-sheet are taken at their face value and accepted in their entirety do not prima facie constitute any offence against the accused, they should not be compelled to face the trial which amounts to abuse of the process of the court and the same is also to be prevented by invoking the inherent power of the Court. Abdur Rahman Dhali vs State 57 DLR 17. Section 561A—In a proceeding under section 561A this court cannot be drawn in an inquiry to the truth Or otherwise of the facts which are not in the prosecution case. Khondaker Fazlul Haque vs State 57 DLR 166. Section 561A—When evidence is required to determine the guilt or otherwise of the petitioners the proceeding cannot be quashed. Decisions reported in 19 DLR (SC) 369, 26 DLR (SC) 69, 31 DLR (SC) 69 and 32 DLR 182 deprecated quashing of proceeding immediately after submission of charge-sheet. Nasim vs State 57 DLR 546. Section 561A—Police report under section 27(1) of the Nari-o-Shishu Nirjatan Ain required for the Tribunal to take direct cognizance against any accused under provisions of said Nari-oShishu Nirjatan Daman Ain must be one under section 173 of the Code of Criminal Procedure as is usually submitted, always after investigation in a police case, started upon first information report lodged in thana or upon a complaint case filed in the Court by Magistrate but subsequently is sent there from to the thana to be treated as first in formation report and for investigation and report under section 173 of the Code. Provisions of 27(1) of the Ain further requires that the police report must be submitted by one police officer not below the rank of Sub-Inspector or police. Amin Uddin vs State 58 DLR 294. Section 561A—In the case in hand, just a first information report was filed and warrant of arrest was yet to be issued by the Magistrate. By filing the Writ Petition, the petitioner has been before this Court and therefore, he cannot be termed a fugitive from justice. Jahangir Hossain Howlader vs CMM, Dhaka 58 DLR 106. Section 561A—Civil Liability—A reading of the first information report as well as the plaint shows that the same allegations were made before the criminal Court and civil Court. Since there is a decree in civil Court as per decisions of 14 DLR (SC) 18 and 51 DLR (AD) 14 where the matter is in seisin of the civil Court, no criminal proceeding can be continued on the said allegations. Firoz Hossain Shah (Md) vs State 58 DLR 361. Section 561A—Relationship between the complainant and the accused being that of Directors of a private Limited Company, principles of partnership shall apply. As such spending of money by petitioner No.1 as Managing Director cannot be termed misappropriation or breach of trust of the fund of the company. Remedy of the complainant, if any, is by way of suit for accounts. Anarul Islam vs State 58 DLR (AD) 7. Section 561A—Since the first information report discloses a prima facie case against the petitioner and to that effect the charge-sheet has been submitted, there is no substance in the submission made on behalf of the petitioner for quashing the proceedings. AHS Rahman vs State 58 DLR (AD) 63. Section 561A—When evidence is required to settle the allegation, proceeding cannot be quashed. A Wadud Member vs State 59 DLR 586. Section 561A—Admittedly, the petitioner has not approached the inherent jurisdiction of this court with clean hands as he has not paid the lawful dues of his principal. A person who admittedly has not approached with clean hands to the inherent jurisdiction of this Court is not entitled to any redress from this Court so long as he remains with unclean hands. Bhaskar Chakraborty vs State 59 DLR 325. Section 561A—Before taking of cognizance of a case by the competent court or tribunal a proceedings cannot be said to be pending and accordingly, a proceeding cannot be quashed unless cognisance in respect thereof has been taken and process issued. Abdul Huque vs State 60 DLR (AD) 1. Section 561A—Availability of alternative remedy by way of appeal or revision will not stand on the way when the question of law and interpretation of statute is involved. Bangladesh vs Iqbal Hasan Mahmood 60 DLR (AD) 147. Section 561A—Since the date of receipt is a question of fact to be ascertained at the time of trial non-disclosure of such fact in the complaint petition cannot render the proceeding liable to be quashed to the great prejudice of the complainant who is entitled to prove his case on evidence. Nizamuddin Mahmood vs Abdul Hamid Bhujyan 60 DLR (AD) 195. Section 561A—Court should normally refrain from giving a prima fade decision in a case where the facts are incomplete and evidence has not been collected and produced before the Court and the issues involved, are of immensity and cannot be seen in their true perspective without sufficient material. Yet no hard and fast rule can be laid down for exercise of this extraordinary jurisdiction. Sheikh Hasina vs State 60 DLR 217. Section 561A—The proceeding of the case at any stage may be quashed even at the initial stage before taking of cognizance where allegations in the first information report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged. Abdul Kadir vs Kowser Ahmed 60 DLR 17. Section 561A—It appears from the plaint and also from the petition of complaint that even cause of action described in both litigations are on the same date, but it appears that the suit was filed earlier than the petition of complaint. In the decisions reported in 51 DLR (AD) 14, 45 DLR (AD) 31, 23 DLR (SC) 14 it has been held that on the self same averments if the suit be filed earlier, the criminal proceeding is to be treated as initiated only for harassment of the accused persons who are defendants in the suit. Mark Parco, MD, APL (Bangladesh) Pvt, Ltd vs State 60 DLR 45. Section 561A—From a reading of the complaint and plaint of the suit that same allegations were before the criminal court as well as before the civil court, since there is a decree in Civil Court as per decision of 14 DLR (SC) 14, 45 DLR (AD) 31 and 51 DLR (AD) 14, no criminal proceeding can be continue. Monirul Islam vs State 60 DLR 59. Section 561A—The power that is inherent with this Division under section 561A of the Code of Criminal Procedure is not denied under Article 102 (2) of the Constitution for issuing certain direction or declaration where the facts and circumstances demand. Such power that is exercised in wider perspective under the authority of the Constitution, the supreme law of the land under which said Code of Criminal Procedure is allowed to be followed in investigation and prosecution of the criminal cases is more efficacious. Iqbal Hasan Mahmood vs Bangladesh 60 DLR 88. Section 561A—What can be done under section 561A of the Code of Criminal Procedure cannot be denied to be done under Article 102 of the Constitution to prevent the abuse of the process of a Court of law or to secure the ends of justice. Iqbal Hasan Mahmood vs Bangladesh 60 DLR 88. Section 561A—If any Bangladeshi National is found in possession of Bangladesh currency notes of any amount, he cannot be taken to have committed any offence under the law of the land and the proceedings at the stage of FIR can be quashed to secure ends of justice. Ram Krishna Nath (Ram Babu) vs State 60 DLR 266. Section 561A—After rejection of the prayer for further investigation by the Tribunal, the charge-sheet is then submitted by the police in the second case accusing the accused-petitioner on the self-same occurrence is malicious, calculated to victimize and harass the accused-petitioner and further proceeding in the case will be an abuse of the process of the Court. Ram Krishna Nath (Ram Babu) vs State 60 DLR 266. Section 561A—Joinder of scheduled offence and non scheduled offence in framing charge is illegal and trial on such a charge is without jurisdiction. Abdul Kader vs State 60 DLR 457. Section 561A—In the petition of complaint it has not been alleged as how and in what manner the accused-petitioner committed the offence of tampering with the meter—As such, the proceeding against him is an abuse of the process of law and liable to be quashed. Ishaque vs State 60 DLR 650. Section 561A—Jurisdiction to quash—This is not a case which is barred by any law nor this a case in which the contentions of the complaint even if admitted in its entirety, no offence is disclosed. The stage of considering the evidence has also not yet reached as the recording of evidence has not even started. Faridul Alam vs State 61 DLR (AD) 93. Section 561A—The power conferred under section 561A of the Code cannot be lightly exercised in order to defeat and delay the normal procedure or to bid farewell to the alleged offender against whom specific allegation is available to commit a punitive offence only on ‘hyper technical’ ground. Specific time has been fixed by the statute to be followed by the authority at every stage in order to create pressure for expeditious disposal, not to bid farewell to the offender without trial on such technical ground. Habibur Rahman Molla vs State 61 DLR 1. Section 561A—The petitioner took money from the informant as loan for business purpose and, as such, in the allegation we do not find any ingredient of entrustment or that the money was taken with any specific promise or inducement. In absence of definite allegation, it cannot be held that taking of money as loan and subsequent failure or refusal by itself shall constitute criminal offence. Ayub Ali alias Mukul vs State 61 DLR 52. Section 561 A—Civil Liability—Since according to the petition of complaint the accused petitioner totally denied the receipt of trucks by agreement and refused to pay the outstanding installments, the question of civil liability does not arise. Defence plea—the proposition of law is now well settled that on the basis of the defence plea or materials, the criminal proceedings should not be if1ed before trial, when there is a prima-facie case for going to the trial. When trial of the case has already commenced and the complainant was examined as a witness quashing of the proceedings is not permissible. Shahida Khatun vs Zafrul Hasan 61 DLR 270. Section 561A—Nor these sections put any embargo on the power of a Police Officer to make search, seizure or to arrest any person or to investigate into a case and there is also nothing in the said Ain requiring a Police Officer to obtain prior permission of the Director General of Madak Drabya Niantron Adhidaptor to investigate into a case or to search, seize and to arrest any person who has committed or is committing or is likely to commit an offence under the said Ain. Liton Bhuiyan vs State 61 DLR 277. Section 561A—Out of a contract of service between the employer and employee, whatever its kind may be, if a sum of money as salary, allowance, emolument etc is due to the employee to be paid by the employer, the former has a right to get it from the latter, who owes it to the former, but this right is always a civil or statutory right to be enforceable in a Civil Court or a Labor Court or the like. In such a case, question of criminal liability does not arise at all. The facts depicted in the petition of complaint do not disclose the offence under sections 406/420/ 109 of the Penal Code or any other offence against the accused- petitioners and therefore, allowing continuation of the proceedings in the above CR case will be a sheer abuse of process of court which should be prevented for the ends of justice. Veena Khaleque vs State 61 DLR 762. Section 561A—Inherent power of the High Court Division is generally exercised where no other remedy is available for obtaining justice in the cause—it should not be invoked where another remedy is available. This power has not been vested upon the High Court Division where another remedy is available. This is an extraordinary power and is exercised in extraordinary circumstances in the interest of justice. Habibur Rahman Mollah vs State 62 DLR (AD) 233. Code of Criminal Procedure [V of 1898]Section 561A read withNegotiable Instruments Act [XXV1 of 1881]Section 138 read withEvidence Act [1 of 1872)Section 114Whether filling up all space of the cheque proceedings quashed.The conversation through electronic media like instagram can be accepted as evidence.Until the contrary is proved, every negotiable instrument which is duly made or deemed to have been made should prima facie be held to be ane supported by consideration. Presumption ander 118 of the Negotiable Instrument Act, shifts the burden of proof in the second seme that is, the burden of establishing a case shifts the defendant, the defendant may adduce direct evidence to prove that the cheque was not supported by consideration and if he adduced acceptable evidence, the burden again shifts the plaintiff, and so on. It is therefore clear that the burden is ambulatory, at one time it is on the plaintiff, and according to the proof and circumstances, it shifts on to the shoulders of the defendant.If a cheque is denied by the drawer but he did not filled up may signed or may not be signed by the accused petitioner and if it is proved by way of acceptable evidence its burden shift to the plaintiff. [2023] 29 ALR (HCD) 68 Section 561A—Whether the appellant has disproportionate wealth, he has concealed his known source of income, there is mis-joinder of charges and the trial of the appellant on facts allegedly committed prior to the promulgation of Dumity Daman Commission Ain, 2004 constitute an offence under the Dumity Daman Commission Ain are disputed facts can only be decided on evidence at the trial. Habibur Rahman Mollah vs State 62 DLR (AD) 233. Section 561A—The inherent power of the Court is undefined and indefinite and, as such, it must be exercised very sparingly and with great caution. Habibur Rahman Mollah vs State 62 DLR (AD) 233. Section 561A—The provisions of the Code provide that the administration of criminal justice should be allowed to proceed in the usual manner without interruption. If the High Court Division interferes with the case in the midst of the trial it will have to set up a wrong precedent by which instead of the cause of justice being advanced had really been stifled. Habibur Rahman Mollah vs State 62 DLR (AD) 233. Section 561A—Since the prosecution case is almost over and the appellant put his defence by cross-examining the witnesses, in view of the consistent views of the superior Courts of this sub-continent that the High Court Division which exercising its power under section 561A of the Code should not usurp the jurisdiction of the trial Court. Habibur Rahman Mollah vs State 62 DLR (AD) 233. Section 561A—No prima face case was made out against the respondent in the first information report and the District Anti-Corruption Officer, Gazipur without examining the necessary papers of the authority (IPSA) specially bill No.4 dated 29-10-1994 lodged the first information report.During investigation by police usually the Court does not interfere under section 561 A of the Code but in the instant case is a fit case to interfere at the stage of police investigation to prevent the abuse of the process of the court and to secure the ends of justice. State vs Lailun Nahar Ekram 62 DLR (AD) 283. Section 561A—Whether the notice as required to be served under section 138 of Negotiable Instruments Act is essentially a question of fact to be proved by adducing evidence at the time of trial, inasmuch as, there is specific assertion in the complaint petition that such a notice was, served. Sheikh Mashuk vs State 62 DLR 28. Section 561A—Mere presence of an arbitration clause in the agreement does bar launching of a criminal case, if the complaint discloses a prima facie case as evident from the case reported in 2002 SCC (Cri) 129, SW Palanitkar vs State of Bihar. Sheikh Mashuk Rahman vs State 62 DLR 28. Section 561A—Defence plea—Defence plea, which, as per well settled principle, is to be decided by evidence before the trial Court and not at all a ground for quashment. Barrister Mainul Hosein vs Md Ali Hossain 62 DLR 38. Section 561A—Quashing of proceeding, not before cognizance is taken—A criminal case actually starts from the date of taking cognizance and issuance of the process. Before cognizance is taken, there is virtually no pending criminal proceeding in the eye of law. So a non-existent criminal proceeding cannot be subject matter of quashment. In this respect, decision of our apex Court in the case of Abdul Huque vs State reported in 60 DLR (AD) 1 may profitably be quoted. Salahuddin Ahmed vs State 62 DLR 351. Section 561A—Section 561A of the Code of Criminal Procedure can exercise its inherent jurisdiction for quashing a proceeding of a criminal case firstly to make such orders as may be necessary to give effect to any order of the Code, secondly to prevent abuse of the process of the Court and lastly otherwise to secure ends of justice. M Fransis P Rojario alias Babu vs State DLR 355. Section 561A—Initiation of the criminal case at the instance of the present complainant/informant without taking recourse of the res provided in Samabaya Samity Ain, is not maintainable in law. Since initiation of the case is barred by law, this Court in exercise of its jurisdiction under section 561A of the Code Criminal Procedure can quash the proceeding at its initial stage before taking cognizance thereof. M Fransis P Rojario alias Babu vs State DLR 355. Section 561A—Quashing of Proceeding— From a reading of the FIR, it appears that the informant in writing made the statement that “আমি ব্যবসা করার জন্য চুক্তি মোতাবেক মাহমুদুর রহমান ব্যবস্থাপনা পরিচালক মেসার্স রহমান এন্ড কোং”। From this statement it appears that the said transaction was made under an agreement and the narration of fact in the FIR indicates also breach of terms of the agreement had crept up from business transaction. It also appears from the FIR that considerable amount, that is about Taka 16,50,000, has already been paid by the accused-petitioner We are of the view that no criminal intention to cheat or to deceive the informant by the petitioner has been made out by the informant. The learned Advocate for the petitioner cited the decisions reported in 1999 BLD (AD) 128 = 4 BLC (AD) 167,26 DLR (SC) 17, 37 DLR 185 207, 39 DLR 214, 1992 BLD 284 = 45 DLR 660 wherein it has been decided that if from a reading of the FIR it comes up the allegations disclose civil liability then the proceeding can be quashed. The proceeding of GR Case No. 3735 of 2002 pending in the Court of learned Chief Metropolitan Magistrate, Dhaka is quashed. Mahamudur Rahman vs Md Matiur Rahman 62 DLR 367. Section 561A—Neither the Senior Special Judge, nor the Divisional Special Judge considered the facts and materials available on record. Just the case has been proceeded on the basis of the police report which cannot be taken as basis unless it is supported by any materials on record which can be scrutinized at the time of taking of cognizance. Syeda Sajeda Chowdhury vs State 62 DLR 441. Section 561A—A Court of law cannot proceed judicially on a mere statement made by police officer to the effect that a prima facie case under certain penal provision has been proved against the accused persons, without disclosing the allegation of fact constituting the offence. Such a statement, unaccompanied by the facts constituting the said offence, which is nothing but a mere opinion of police officer concerned, cannot be in any event, the basis of any judicial action by the Court. Sajeda Chowdhury vs State 62 DLR 441. Section 561A—There is no legal impediment to file a criminal case even if a civil suit is pending on the selfsame allegations provided the ingredients of the offence are present Khandaker Abul Bashar vs State 63 DLR (AD) 79. Section 561A—During investigation, a proceeding should not be stifled without allowing proper investigation into the allegation, save and except in a very rare type of cases which are found to be so preposterous that the allegations if accepted to be true in its entirety, does not constitute any offence. Habibur Rahman vs State 63 DLR 23. Section 561A—The exercise of jurisdiction will depend upon the facts and circumstances of each case. Interference even at an initial stage may be justified where the facts are so preposterous that even on the admitted facts no case can stand against the accused and that a further prolongation of the prosecution would amount to harassment to an innocent party and abuse of the process of the Court. Sheikh Hasina vs State 63 DLR 40. Section 561A—Since there is no legal bar against the initiation, framing of charge, and continuation of the proceedings and, as such, the proceedings do not amount to an abuse of the process of the Court. Abeda Chowdhury vs State 63 DLR 118. Section 561A—In the four corners of this case there is not an iota of allegation that the petitioner received any gratification from anybody , in connection with the awarding of the work to the concerned company or there is no ingredients of Section 5(1) of the aforesaid act being punishable under Section 5(2) of the Prevention of Corruption Act, 1947. The concerned Officer of the Anti-Corruption Commission most hurriedly and at the behest of the then Government lodged this FIR without any sanction from the Anti- Corruption Commission violating the mandatory provisions of Section 32 of the Anti-Corruption Commission Act, 2004. Sheikh Hasina vs State 63 DLR 162. Section 561A—Information——Written or oral information—Whenever any written or oral information is placed before any Officer-in-Charge of any Police Station it is his bounden duty to reduce the information into writing, in other words to record the FIR and set the information in motion forthwith and to initiate investigation. Hasura Begum vs Bangladesh DLR 195. Section 561A—Police has acted with malafide intention at the behest of the then Four Parties alliance backed Government and did not hesitate to victimize eminent jurists of the country at the instance of the persons who is nothing but a busy body. We must expect specially from the higher police officers, who at least go through the laws and relevant decisions of the Apex Court of the country and must work for the interest of their real master, the people of the country. But it is unfortunate that no change has been achieved bySection 561A—Criminal proceeding can be preceded independently of the civil suit. Ka Bi Ma Iftekhar Anam vs State 63 DLR 338. Section 561A—Even non-disclosure of the cause of action cannot be a ground for quashing the proceeding to the great prejudice of the complainant who is entitle to prove his case on evidence. Sarwar Hossain Moni vs State 63 DLR 510. Section 561A—Non disclosure of the date of receipt of notice under section 138(1)(b) of the Negotiable Instruments Act is a question of fact which will be decided at the time of trial. Noor Jamal vs State 63 DLR 531. Section 561A—Since it is apparent that at a very initial stage i.e. right after the lodging of the FIR the petitioner obtained the Rule and stay before taking cognizance by a competent Court and, as such, an application under section 561A of the Code should be considered to be a premature one. The truth or otherwise of the allegation as against the accused-petitioner in the FIR could only be decided in the trial on evidence. Bahauddin Haider vs State 63 DLR 561. Section 561A— The cheque was issued to discharge, either in whole or in part, a legally aiforceable debt or liability. The accused petitioner had never any debt or liability to discharge. It is the husband of the accused-petitioner who had the debt or liability to discharge. The liability or debt of the husband of the accused-petitioner cannot be thrust on to the shoulder of the accused-petitioner.’ Given this scenario, if the accused-petitioner is made liable for the debt or liability of her husband, that will go against the spirit of the mandate of section 138(1) of the Act. Shahnaj Begurn vs State 63 DLR 279. Sections 561A & 145—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 561A & 145—When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under section 145 CrPC. Abul Bashar vs Hasanuddin Ahmed 51 DLR (AD) 14. Sections 561A& 145-When the Civil Court is already seized with the question of regulating possession of the land between the same parties the Magistrate acted without jurisdiction in initiating the proceeding under section 145 CrPC. Abdul Majid Mondal vs State 51 DLR 287. Sections 561A & 195—In a proceeding where a forged document has been used the Court concerned should make the complaint.. The criminal Court should not take cognizance on a private complaint. The want of complaint under section 195 is incurable and the lack of it vitiates the whole trial. Wahida Khan vs Shahar Banoo Ziwar Sultan and State 48 DLR 286. Sections 561A& 265C—We do not find any reason to quash the instant criminal case by involving our inherent jurisdiction under section 561A CrPC as the Code under section 265C provides for an alternative remedy. Salahuddin vs State 51 DLR 299. Sections 561A, 439A & 439(4)—The Sessions Judge’s decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. He is free to go to any appropriate forum to challenge the Sessions Judge’s decision. But he cannot go to the High Court Division with another revisional application, as such an application—better known as second revision—is expressly barred by section 439. Though the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still it can interfere with the Sessions Judge’s order by invoking its inherent power for the limited purposes as set out in that, section namely, ‘to give effect to any order under the Code, orto prevent abuse of the process of any Court or otherwise to secure ends of justice’. Sher Ali vs State 46 DLR (AD) 67. Sections 561A & 439(4)-As there is nothing in the impugned order requiring to prevent abuse of the process of the Court or to secure the ends of justice, the revisional application is barred under the amended provision of section 439(4) of the CrPC. Anower Hossain vs Md Idrish Miah 48 DLR 295. Section 561A, 498—It appears the petitioner was a Judge of the Supreme Court of Bangladesh this having a respectable status in the society. He has also acted as an Adviser of the then Caretaker Government headed by Professor lajuddin Ahmed. Complying the notice of the Anti- Corruption Commission the petitioner submitted his wealth statement before the Anti-Corruption Commission wherefrom the commission has invented a discrepancy in his wealth statement and also other corruption committed by him during his tenure as Adviser of the Caretaker Government. He has retired from the Appellate Division at the age of 65 years and now running 70 with ailing health as appears even from his gestures. His application for bail is allowed considering the fact that he may be harassed by the vested quarters before his surrender in the trial Court. Fazlul Haque vs State, ACC 60 DLR 648. Section 561A & 439(A)—A party aggrieved by the order of discharge passed by the Magistrate can move to the superior Court against such order in which case the Superior Court may pass order to consider the materials for the prosecution but cannot direct the Magistrate to frame charge. Abul Kalam Azad vs State 60 DLR 470. Sections 561A, 195(C), 344(1)—The proceeding of CR Case No. 2969 of 2004 under sections 468, 34 of the Penal Code, now pending in the Court of Metropolitan Magistrate, be postponed or stayed for a period of 1 year from the date of receipt of this judgment by the Court below. Meanwhile, both sides be directed to move jointly or separately in the First Court of Joint District Judge, Chittagong, to arrange for early disposal of OC Suit No. 110 of 2002 for Specific Performance of Contract based on Bainapatra dated 10-4-2001. Hanif vs State 60 DLR 634. Section 561A—Agreement to sell the land—Payment of Tk. 50.000 made in part performance of the contract—Whether delay in registering the sale—deed and delivering the property to the opposite parties or subsequent conduct in refunding the contract money constitutes an offence of criminal nature— Facts alleged in the FIR do not disclose any criminal offence—Transaction being of civil nature the continuation of proceeding against the petitioner is an abuse of the process of the Court.Abdul Bari Vs. Abul Hashem Mazhzder & ors. 40 DLR 301. Section 561A—Whether a proceeding under section 561A of the Criminal Procedure Code is to be quashed depends upon the facts of the case itself.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A—Delay is by itself no ground for quashing the criminal proceeding. But machinery of justice should not b allowed to harass any innocent person.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A—When a prosecution arises out of ill—motive or impropet motive the machinery of administration of justice need not be available to such person. Reason of delay in lodging FIR is unconvincing.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A—The informant’s plea that he could not lodge FIR due to alleged lawlessness even after 1975 although there was constitutional government for over 4 years except a Martial Law Government for a brief period is unacceptable. The proceedings are quashed.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A—Mere delay in lodging a complaint is not a ground for quashing a proceeding. There may be circumstances in which lodging of FIR as to commission of an offence may be deLayd.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A—Explanation for delay in lodging FIR was given, i.e. fear of life from very influential persons.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A—Delay raises doubt about the truth of allegation.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A—Pririciples upon which exercise of extraordinary powers under section 561A CrPC is made have been stated.Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A— Facts of the instant case do not bring it within the ambit of exceptional circumstances in which the extraordinary power of the Court may be exercised. Md. Shamsud4in Vs. State 40 DLR (AD) 69. Section 561A— A timely GD entry of course strengthens the allegation made in the complaint and its absence may create doubt about it; but doubt in the allegation is a matter to be considered at the trial only. Md. Shamsuddin Vs. State 40 DLR (AD) 69. Section 561A— Despite earlier order of rejection of the prayer for quashment of the proceeding, the subsequent application will not operate as a bar for exercising the inherent jurisdiction under section 561A CrPC. AKMM Saleh Vs. State 45 DLR 386. Section 561A— On the death of principal offender possibility of proving the guilt of the abettor becomes bleak. AKMM Saleh Vs. State 45 DLR 386. Sections 561A— if the trial Court fails to perform its duty in respect of framing of charge and the charge is framed on insufficient materials High Court Division can investigate whether the charge is groundless. AKMM Saleh Vs. State 45 DLR 386. Section 561A— Cognizance taken and trial held in this case being without jurisdiction, the court may exercise its inherent jurisdiction under section 561A CrPC to prevent the abuse of the process of the Court. Khalilur Rahman Vs. State DLR 385. Section 561A— View of the Additional judge not so perverse as to merit interference. Moslemuddin Dhali Vs. Helaluddin Dhali 41 DLR 120. Section 56 1A— The fact that the accused were tried and found guilty and then unsuccessfully filed an appeal and a revisional application cannot be a ground, in the facts of the present case (i.e. absence of any legal evidence), for refusing to exercise the Court’s inherent power to secure the ends of justice by way of setting aside their conviction. Mofazzal Hossain Mollah & ors. Vs. State 45 DLR (AD) 175. Section 561A— Quashing of criminal proceeding—The sword of prosecution hanging over the head of accused petitioners for nearly 10 years without any fault on their part and they are suffering economically, mentally and socially—It is a sheer abuse of the process of the Court and for that reason the proceeding is to be quashed in respect of them. Md. Mosharraf Hossain Vs. State 42 DLR 213. Section 561A— In a proceeding under this provision the court should not be drawn in an enquiry as to the troth or otherwise of the facts which are not in the prosecution case. HM Ershad Vs. State 45 DLR (AD) 48. Section 561A— Mere plea of right of private defence cannot be. a ground for quashing the criminal proceeding, for such plea is to be established by the accused who takes it. A criminal proceeding is liable to be quashed only if the facts alleged in the First Information Report of complaint petition, even if admitted, do not constitute any criminal offence or the proceeding is barred by any provision of law. Where disputed facts are involved, evidence will be necessary to determine the issue. The appellants have produced an order of temporary injunction against the complainant’s party. This must be considered along with other evidence during the trial. Their application for quashing the proceedings is found to have been rightly refused by the High Court Division. SM Khalilur Rahman Vs. State 42 DLR (AD) 62. Section 561A— Quashing of proceedings for alleged breach of trust and cheating: Money claims, not the outcome of a particular transaction but arose after year—end accounting following regular business between the parties. If on settlement of accounts at the end of a period some money falls due to one party from the other party and the other party fails to pay the dues, such liability cannot be termed criminal liability. Allegation that dues were allowed to accrue dishonestly, neither attract an offence under section 420 nor under section 406 or under any other section. The whole allegation in complaint petition, even if true, cannot form basis of any criminal proceeding. The proceedings are quashed. Syed Ali Mir Vs. Syed Omar Ali 42 DLR (AD) 240. Section 561A— The accused cannot challenge the entire criminal proceeding at a stage when the case is ripe for trial following framing of charge. When he has taken a specific defence against the charge on the basis of a GD entry he has to establish the same. The charge under section 420 Penal Code is upheld. Shafiuddin Khan Vs. State 45 DLR 102. Section 561A— Questions whether the occurrence was accidental and whether the petitioner had intention to commit mischief to the complainant needs evaluation of evidence to be led by the prosecution which cannot be stifled by exercising power for quashment. When allegations create both civil and criminal liabilities it is for the complainant to choose any or both of the forums for redress of grievance. Tofazzal Hossain Chowdhury Vs. Mir Amanutlah 45 DLR 263. Section 561A— Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the HR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain and others Vs. State 43 DLR (AD) 102. Section 561A— It has been asserted that the FIR itself was lodged by the complainant after receiving an order from the Home Ministry and not on his own. A prosecution cannot be quashed just because it was initiated at the instance of the Home Ministry. The question of possession can only be decided on evidence and not on submission on law as to what constitutes possession. The question whether the proceeding should be quashed or not should be decided on facts alleged in the FIR and charge—sheet. The accused’s general denial that the facts disclosed in the FIR are not true will not do. To succeed, the accused must show that the facts alleged by the prosecution do not constitute any offence or that the prosecution is otherwise barred by law. Hussain Mohammad Ershad Vs. State 43 DLR (AD) 50. Section 561A— Quashing of proceeding— Court will be loath to stifle a prosecution at the initial stage unless facts are such as would attract inference that even upon admitted facts no case can be made out and continuation of the proceeding would be an abuse of the process of the Court. Al-Haj Md. Serajuddowlah Vs. State 43 DLR (AD) 198. Section 561A— Quashing of proceedings—Whether the untrue statement of the accused regarding his imported goods on which he has been prosecuted under the Customs Act is intentional or unintentional, bonafide mistake or a case of absence of knowledge is for the trial Court to decide on the basis of evidence that would be adduced—if the pending proceeding is stopped at this stage it would amount to stifling the proceeding in limine. Atiqur Rahman Vs. AKM Fazlul Hoque 43 DLR 49. Section 561A— Indictment proceeding against a detenu—Question of its legality or otherwise at the time when it was initiated and at a subsequent time—an order of detention would be deemed to be a warrant of arrest from the Court of Magistrate; if the detenu would violate the warrant he would be a fugitive from justice. His failure to comply with direction to surrender would immediately attract the mischief of prosecution and consequent punishment. The offence would be complete on failure to surrender, subject however, to the defence of impossibility of performance which is a matter of fact to be decided on evidence. Section 7 (I) (b) is a punitive provision to come into play immediately after the lapse of time for surrender. The contention that the detention orders being illegal the detenu had not rightly surrendered has little substance. It is not the order of detention but it’ is the fact of detention itself that matters. At the time it was initiated the proceeding was not prohibited by any law nor was it taken in violation of any law. It need not therefore be quashed at the present stage. Anwar Hossain Monju Vs. State 43 DLR 447. Section 561A— Petition of complaint contains allegations under sections 295Af298/ 109 Penal Code out of which, to initiate and continue with the proceeding, compliance of the provision of section 196 CrPC in respect of offence under section 295A Penal Code is necessary but no compliance is necessary in respect of offences under sections 258/109 Penal Code. Interference by way of quashing the entire proceeding is not called for. Name of the petitioner finds mention in the petition of complaint but on a reading of the same his complicity with commission of offence could not be traced out. The proceeding as against him is liable to be quashed in terms of the principles enunciated in 28 DLR (AD) 38. Jamir Sheikh Vs. Md. Fakir 43 DLR 417. Section 561A— Right of heirs of deceased complainant top with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr. Md. Abdul Baten Vs. State 43 DLR 60. Section 561A— Inherent power under this section though unlimited should be exercised only in 3 cases when no other alternative remedy is generally available under the Code to make such order as may be necessary to give effect to any order wider this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In the peculiar facts and circumstances of the case, any interference with the impugned order of the learned Magistrate at this belated stage will not serve any of the purposes of this section, rather such interference may cause undue harassment to the opposite party and defeat the ends of justice. State Vs. Satya Narayan Sarada 43 DLR 529. Section 561A— The decision in this case having depended on findings of facts as to whether the seized arms were recovered from the possession of the petitioner, whether the same came within the exception provided for and covered by amnesty, if any, declared by the Government. The extraordinary power to — prevent the abuse of the process of the Court is not required to be exercised. Hossain Mohammad Ershad Vs. State 43 DLR 150. Section 561A— Allegation made in the— FIR having not disclosed any offence of extortion as defined, under section 383 Penal Code, the impugned proceeding against the accused for his punishment under section 387 Penal Code is quashed. Abul Bashar Vs. State 44 DLR 391. Section 561A— Default in delivery of share certificate—Quashing of proceeding for such default—It is not the complainant’s case that his share certificates were not made — ready within time. Once the share certificates are completed and made ready within time, the liability of the accused person’s ends. The law does not provide that the certificates are to be made ready for delivery to the complainant. Non-delivery of the share certificates is not an offence and the proceeding is liable to be quashed. Muhammadullah Vs. Makbul Ahmed 44 DLR 107. Section 561A— Writ Jurisdiction and inherent jurisdiction of the H1gh Court Division, applicability of—If there was any statutory provision of appeal and revision for setting aside the proceedings in question against the petitioner, then the question whether any equally efficacious adequate alternative remedy is available to him would act as a bar to move the High Court Division under the writ jurisdiction. Inherent jurisdiction of the High Court Division under section 561A CrPC cannot be said to be an alternative remedy to the Court’s writ jurisdiction. Anisul Islam Mahmood Vs. Bangladesh 44 DLR 1. Section 561A— Inherent jurisdiction—it is not an alternative jurisdiction—Inherent jurisdiction for quashing of criminal proceedings should not be invoked where some other remedy is available. This is not an alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or provided by the Code itself. This power cannot be so utilized as to interrupt or divert the ordinary course of criminal procedure. MM Rahmatullah Vs. State 44 DLR 576. Section 561A— Quashing of criminal proceeding whether can be allowed under writ jurisdiction—Labour Court being a court subordinate to the High Court Division quashing of criminal case can appropriately be prayed before the criminal bench of the Court which is the efficacious remedy under the Code of Criminal Procedure. SM Shaflul Azam and others Vs. Director of Labour and others 44 DLR 582. Section 561A— Though the inherent power of the High Court Division is undefined and unlimited but this inherent jurisdiction should not be generally and indiscriminately invoked particularly when some other remedy is available. The jurisdiction is not alternative or an additional one but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available nor has been provided in the Code itself. Engineer Afsaruddin Ahmed vs State 46 DLR 496. Section 561A— Inherent jurisdiction of court—Whether such jurisdiction is applicable in cases from which appeals are barred by limitation—Section 561A CrPC cannot be conceived to give the High Court Division jurisdiction to retrieve the cases from the moratorium after they have been barred by limitation. Then, in the memo of the appeal taken or in the submission no ground has been taken that the Tribunal had no jurisdiction to try the case or that it arrived at absurd or preposterous conclusion from the evidence on record. The section 561A of the Code of Criminal Procedure has not given any new jurisdiction to the High Court to override other laws. It is easy to see that this Court cannot have any inherent jurisdiction to strike down the law of limitation. The law of limitation is so inexorable that a person loses his good title on account of law of limitation. It may be desirable that something is done for the redress of the accused who lost their right of appeal and has very good case in their defence, but it is for the legislature to do. Mr Mohammad Ali vs State 46 DLR 175. Section 561A— There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts. The criminal case stands for the offence, while the civil suit is for realisation of money, both can stand together. Khondaker Mahatabuddin Ahmed and others vs State 49 DLR (AD) 132. Section 561A— The complainant has the option to activate prosecution of the petitioners under the Immigration Act, 1982 as well, but if the allegations contain ingredients under the Penal Code, the complainant's case before the Magistrate cannot be stiffed by quashing. Noor Jahan Begum and another vs State, being represented by the Deputy Commissioner and another 49 DLR (AD) 106. Section 561A— The Drug Control Ordinance is an additional forum for trying drug offences. Taking of cognizance and framing of charge by the Tribunal under the Special Powers Act in respect of offences relating to possession of spurious medicine, are not illegal and the prosecuting thereof are liable to be quashed. Ordinance No.VIII of 1982 has been promulgated not with a view to excluding all other trials on the same offence but as an additional forum for trying drug offences. If the same offence can be tried by a Special Tribunal under the Special Powers Act it cannot be said that the accused-petitioner has an exclusive right to be tried by a Drug Court only. As on the petitioner's own showing he has been charged only under section 25C(d) of the Special Powers Act by the Senior Special Tribunal, we do not find any illegality in the proceedings. S Ashraf Ali @ Asraf Ali vs State 49 DLR (AD) 107. Section 561A— It cannot be said that the Court was wrong in holding and acting on the premises that the dispute between the parties arising out of a joint stock should be settled in the civil Court and the criminal proceeding be quashed. Ansarul Haque vs Abdur Rahim and 4 others 49 DLR (AD) 145. Section 561A— The Sessions Jud having passed an order under section 439A CrPC setting aside finding of Magistrate under section 145 CrPc all remedies for the first party be exhausted, the party is competent invoke section 561A [1984 BLD( 165 ref] Soleman (Md) vs Ahba Khalifa and others 46 DLR 298. Section 561A— Quashing of a proceeding can be made even at the initial stage of a case, and when facts and circumstances demand, even at the stage when cognizance is taken by the Magistrate in a case under the Penal Code. Mubashwir Ali and others vs State 46 DLR 535. Section 561A— The exercise of power under this section is not totally barred against an order passed by the Sessions Judge under section 439A CrPC. It is to be seen whether the petitioner invokes this court's revisional jurisdiction under the garb of an application under section 561A CrPC. If the condition of this section is fulfilled the High Court Division may exercise its power there under. Fatema Begum @ Urmila Rani vs Gageswar Nath and State 46 DLR 651. Section 561A— When exercising jurisdiction under this section, the High Court Division will not embark upon an enquiry whether the evidence in question is reliable or not which is a function of the trial Court. Quashment of criminal proceeding before commencement of trial may amount to stifling the prosecution. Abu Bakar and others vs State, 46 DLR 684. Sections 561A, 438 & 439A— Reference—Since the petitioner could not make out a case of quashing of the proceedings and since no such power is vested in the Sessions Judge the impugned order refusing to make a reference to the High Court Division suffers from no illegality. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127. Section 561A—In view of the complainant's case that he delivered goods in good faith on the accused's inducement of part-payment and promise to pay the balance price within 3 days but subsequently betrayed, it cannot be said there is no prima facie case against him—the High Court Division rightly refused to quash the proceeding. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180. Section 561A— The inherent jurisdiction of the High Court Division would be available even to a party who had lost in revision before the Sessions Judge. In this connection this Court, however, referred to the limited scope of section 561A and observed that this inherent power is neither an additional power nor an alternative power of the Court, that this power is to be exercised very sparingly keeping itself within the bounds of this provision and that a revision petition cannot be brought in the camouflage of a petition under section 561A. Sher Ali (Md) and others vs State and another 46 DLR (AD) 67. Section 561A- The inherent power under section 561A can be invoked at any state of the proceeding, even after conclusion of trial, if it is necessary to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Appellant was convicted solely on the statement of a co-accused who, however, did not implicate himself in the crime but shifted the blame upon others including the appellant. This Court found that there was no "confession" at all as its maker did not implicate himself in the crime and further that this statement was not corroborated by any other evidence and consequently the conviction was based on 'no evidence' which could be quashed by the High Court Division in exercise of its inherent power under section 561 A. Sher Ali (Md) and others vs State and another 46 DLR (AD) 67. Section 561A- The inherent power may be invoked independent of powers conferred by any other provisions of the Code. This power is neither appellate power, nor revisional power, nor power of review and it is to be invoked for the limited purposes. This power may be exercised to quash a proceeding or even a conviction on conclusion of a trial if the Court concerned got no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence, or the conviction has been based on 'no evidence' or otherwise to secure ends of justice. Sher Ali (Md) and others vs State and another 46 DLR (AD) 67. Section 561A- The decision of the judges that the application under section 561A is liable to be rejected for lack of jurisdiction is totally erroneous and it is held that the High Court Division has jurisdiction to entertain such an application but whether interference will be made in a particular case is altogether a different matter. The general principle is that the power being extraordinary its exercise also will be rarity. The "total bar" in section 439(4) of the Code, as spoken of by the learned Judges, is only against further revision—that is, revision under section 439(1) of the Code and not against the Court's inherent jurisdiction which is altogether different from any other jurisdiction under the Code. The High Court Division, on the one hand, wilfully disregarded this Court's decisions, and, on the other hand, flouted Article 111 of the Constitution. This cannot be countenanced and must ; be disapproved strongly. Sher Ali (Md) and others vs State and another 46 DLR (AD) 67. Section 561A- A litigant should not be allowed to move this court under the section 561A of the Code when other remedy is available to him under the Code. Section 561A of the Code is to be taken resort to only to prevent abuse of the process of court or to secure the ends of justice and not to allow abusing the process of the Court to stop trial of the cases for about a decade and then to get acquittal in the trial Court afterwards for want of evidence occasioned by lapse of long time. Maksudur Rahman Hilaly and others vs State 47 DLR 314. Section 561A--- An appeal filed under section 30 of the Special Powers Act but not admitted for hearing as it was found barred by limitation can be allowed to be converted to a miscellaneous case under section 561A of the CrPC for securing the ends of justice. Sohail Ahmed Chowdhury vs State 47 DLR 348. Section 561A---After conversion of an appeal to an application under section 561A CrPC the application can be disposed of by the same Bench without issuing a Rule afresh—technicalities of procedure may be avoided with a view to securing the ends of justice. Sohail Ahmed Chowdhury vs State 47 DLR 348. Section 561A---This Court has inherent jurisdiction to set aside its own judgment to secure ends of justice or to prevent abuse of the process of any Court under section 561A of the Code of Criminal Procedure. Serajul Islam and others vs Fazlul Hoque and others 47 DLR 480. Section 561A— This Court in exercise of its extraordinary power of quashing cannot usurp the jurisdiction of the trial Court to receive and examine evidence adduced by the accused in his defence to exonerate him from the charge brought against him. Shyamal Chandra Das vs State and others 47 DLR 474. Section 561A— This section corresponds to section 151 of the Code of Civil Procedure with almost similar principle. Sohail Ahmed Chowdhury vs State 47 DLR 482. Section 561A— Inherent jurisdiction —Extent of applicability—Inherent jurisdiction of the High Court Division which is generally exercised for preventing the abuse of the process of the court in respect of the pending proceedings can also be invoked in appropriate cases for securing the ends of justice in respect of a proceeding which has reached its finality. Sohail Ahmed Chowdhury vs State 47 DLR 482. Section 561A-— Finding of guilt of accused person cannot be based merely on high probabilities but should be rested surely and firmly on the evidence and mere conjecture and hypothesis cannot take the place of proof. In the present case the non production of seized gold for which no explanation has been furnished by the prosecution, failure of the prosecution to test the seized gold by an expert are sufficient to show that the judgment and order of conviction is based on surmises and not on evidence and hence liable to be quashed. Sohail Ahmed Chowdhury vs State 47 DLR 482. Section 561A— Interference of this Court in exercise of its inherent power under section 561A of the Code at the initial stage of investigation or before taking cognizance or framing of charge will be justified only when this Court finds that the allegations made in the First Information Report or petition of complaint do not constitute the offence alleged against the accused or that on the admitted facts no case can stand against the accused. Santosh Bhusan Das and others vs State 47 DLR 519. Section 561A— That a Minister is personally interested in the case against the accused, though found to be true, by itself is not sufficient to conclude that the allegation against the accused is false, the High Court Division observed rightly that the proceeding cannot be quashed as it remains for the prosecution to establish the allegation by adducing evidence in trial. Engineer Afsaruddin Ahmed vs State 47 DLR (AD) 10. Section 561A— In view of the unusual facts and circumstances of the case i.e. re-investigation by the Criminal Investigation Department to be a malafide act to create cleverly a plea of alibi for a particular accused the order of the High Court Division allowing quashment need not be interfered with. Afia Khatoon vs Mobasswir Ali and others 47 DLR (AD) 62. Section 561A— In a rule for quashing the proceeding the court cannot enter into the merits of the allegations. Khorshed Alam vs Azizur Rahman & another 48 DLR 36 Section 561A— Even if accounts of the company were audited and approved by the share-holders the same cannot exonerate the persons in charge of the management of the company from facing trial on the allegation of misappropriation of the fund. Khorshed Alam vs Azizur Rahman & another 48 DLR 36 Section 561A— Fresh trial of the petitioner for the negligence of the presiding officer concerned would be an unnecessary harassment to him and an abuse of the process of the court. Question is whether for such negligence of the presiding officer concerned petitioner should suffer a fresh trial for no fault of his own and procedural technicalities should be allowed to prevail over the ends of justice. In this connection we like to mention that no complaint was made by the Public Prosecutor before the said Tribunal before passing of the said order that no trial was held culminating in pronouncement of judgment on 25-1-89 in open court acquitting the accused petitioner. In the above facts and circumstances we are of the view that the petitioner should not face any fresh trial for the negligence of the presiding officer. Adhir Kumar Shaha vs State 48 DLR 87 Section 561A— In view of existing legal position owing to the enactment of sections 265C & 241A CrPC an accused can prefer an application under section 561A if he became unsuccessful in his application either under section 265C or section 241 A. Otherwise his application under section 561A would be premature. Liton vs State and others 48 DLR 102 Section 561A— Even when the seized documents placed before the Court were seized illegally the Court cannot but consider those as relevant to the matter in issue and no inherent jurisdiction of the Court could be exercised for a discussion on evidence. Moudud Ahmed vs State 48 DLR 108 Section 561A— Submission of charge-sheet beyond the specified time of 30 days under the Anti-Terrorism Act is illegal and as such the proceeding cannot proceed in the Anti-Terrorism Tribunal. Shahidullah Kazi, Amjad Hossain vs State, Abul Kasem 48 DLR 178 Section 561A— Since the jurisdiction of the criminal Court to draw up proceedings under section 145 of the Code is ousted as the civil Court is in seisin of the subject matter of the dispute the entire proceeding in question appears to be without jurisdiction. Jasimuddin (Md) and 2 Others vs Md Humayun Kabir 48 DLR 578 Section 561A— Examination of the existing materials on record taking into account the defences that the petitioner might offer at the trial, whatever be the merit of such an exercise, is certainly not the method of disposal of an application under section 561A moved after framing of charge in the case. After framing a charge, an application under section 561A CrPC to quash the proceedings is still available to the accused-petitioner on the ground that the allegation of facts even if true does not support the accusation or any other offence against him. The charge itself may be impugned but it is not the function of the trial Court while framing charge or the Court exercising jurisdiction under section 561A CrPC to examine the admissibility, relevance, propriety or sufficiency of materials. For, all these questions, especially in a criminal trial, are mixed questions of fact and law which cannot be resolved in an abstract manner without the facts surfacing at the trial. Moudud Ahmed vs State 48 DLR (AD) 42. Section 561A— A wide conclusion that after framing of charge no application under sections 561A CrPC lies should be read in the observation of the High Court Division—"I do not agree with the learned Counsel of the petitioner that at this stage, after framing of charge, the proceedings cannot be proceeded with". Moudud Ahmed vs State 48 DLR (AD) 42. Section 561A— There may be cases where allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, and in such cases it would be legitimate for the High Court Division to hold that it would be manifestly unjust to allow process of the criminal Court to be issued against an accused person. The High Court Division may interfere under section 561A even during Police investigation cognizable offence is disclosed and still more if no offence of any kind is disclosed because in that case the Police would have no authority to undertake an investigation. But the usual and well-settled practice is that a criminal proceeding can only be quashed after cognizance has been taken and process issued thereupon subject to the fundamental principle that the power of quashing is and should be very sparingly exercised and only to prevent the abuse of the process of the Court. Syed Mohammad Hashem vs State 48 DLR (AD) 87. Section 561A— A Criminal Procee­ding cannot be quashed on the basis of defence materials which are still not part of the materials for prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case. Rehela Khatun vs Abul Hassan and others 48 DLR (AD) 213. Section 561A— A careful reading of sections 29, 463 and 464 of the Penal Code together would clearly show that a false document must have been actually made and that mere taking of a signature on a blank paper without writing anything on that paper does not make it a document. Since the complainant petitioner did not disclose the nature of the document allegedly created the allegations made do not constitute the offence under section 465 of the Penal Code and as such the impugned proceeding is liable to be quashed. Syed Khalilulla Salik alias Juned vs Haji Md Rahmat Ullah 2. State 49 DLR 16 Section 561A— Rejection of writ petitions against criminal proceedings on grounds of availability of alternative remedy by way of quashing of the proceeding cannot be a bar against further writ petitions against the same criminal proceedings when the very legality of institution of the proceedings have challenged. Shahriar Rashid Khan Bangladesh 49 DLR 13. Section 561A— The present case under sections 4(2) and 5(2) of Act II of 1947 initiated by the Bureau of Anti-Corruption involving only private individuals is not maintainable in law and is therefore liable to be quashed. Golam (Md) Abdul Awal Sarker and others vs State 49 DLR 95 Section 561A— In the circumstances that the petitioner has all along flouted summons and warrant and never asked for bail even in the High Court Division, it is difficult to entertain his application for quashing of proceeding before he surrenders to the Court. We have also seen from the affidavit and submission that the petitioner is an old man and professor of a University suffering from ailments and is not able to go to Gopalganj. Considering the nature of the case we direct that the case may be withdrawn from the Magistrate Court Gopalganj to the Court of Chief Metropolitan Magistrate, Dhaka where the petitioner must surrender and obtain bail. Dr Ahmed Sharif vs State and another 49 DLR 100. Section 561A— Where a prima facie case of criminal offence has been clearly made out, the High Court Division in a proceeding under section 561A CrPC has little scope to scrutinise the truth or otherwise of any document or other evidence, which may be used as a defence in a criminal proceeding. Kamrul Islam (Md) vs Atikuzzaman 49 DLR 258. Section 561A— Institution of a money suit for recovery of the money will not stop prosecution for an offence committed in the eye of law. Nurul Islam vs State and another 49 DLR 464. Section 561A— When in the FIR and before the Court the informant stated that the petitioner had illicit intercourse with her against her will and the evidence disclosed a case against, the Court cannot shift the evidence adduced from the side of the prosecution. Alamgir Hossain (Md) alias Alamgir vs State 49 DLR 630 Section 561A— The criminal proceeding in the instant case is required to be quashed to secure the ends of justice so that title may be set at right once and for all by the civil Court. Sabdul Ali vs Md Mabed Ali Sarker 50 DLR 146. Section 561A— The notice for talak was issued on 26-6-95, but the petitioner took the second wife on 29-5-95, about a month before the service of the notice, not to speak of expiry of 90 days as provided for under section 7 of Muslim Family Laws Ordinance to make the pronouncement of talak effective. As such the application for quashment of proceedings for punishment of the petitioner is summarily rejected. AKM Rafiqul Alam vs State 50 DLR 265. Section 561A—The Chief Metro­politan Magistrate has avoided passing of orders on flimsy grounds and as such the question of approval of the District Magistrate for such permission does not arise. In such a case, the under-trial prisoner could invoke the inherent jurisdiction of the court for ends of justice. The under-trial prisoner in this case is entitled to Class I status in the jail under the provisions of Paragraph 910 of the Jail Code and the authority is directed to allow the status due to him. Major (Retd) M Khairuzzaman vs State 50 DLR 283 Section 561A— Taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings. On a reading of the petition of complaint it is difficult to hold that the allegations and the complaint do not disclose any offence and the continuance of the proceeding will be a flagrant abuse of the process of the court and the same is to be buried before trial and the inherent power which are in the nature of extraordinary power has to be passed in aid. Rustom Ali Matubbar alias Alam vs Mohammad Salahuddin and another 50 DLR 301 Section 561A— From the petition of complaint we find no allegation of initial deception on the part of the accused petitioner or entrustment of any property. Ingredients of the offence of cheating and criminal breach of trust having not been disclosed in the petition of complaint the same is liable to be quashed. Abdul Hai vs State 50 DLR 551 Section 561A— Whether in the facts of a particular case a higher section is attracted can be considered at the time of framing of charge. It is not necessary to amend the charge-sheet to include a higher offence. Mokaddesh Mondal and others vs State and others 50 DLR (AD) 186 Section 561A— Nothing was stated in the FIR that the accused denied that he would not pay the balance amount. No allegation of initial deception has also been alleged. The High Court Division rightly quashed the proceeding. Rafique (Md) vs Syed Morshed Hossain and another 50 DLR (AD) 163 Section 561A— Subsequent allega­tions will not save limitation for prosecution—The requirement under the law is that the complaint against non-payment of money has to be filed within one month of the date on which the cause of action arises—The High Court Division wrongly rejected the application for quashing. SM Anwar Hossain vs Md Shafiul Alam (Chand) and another 51 DLR (AD) 218. Section 561A— A convict may invoke the inherent jurisdiction of the Court if he can make out a case of coram non judice of the trial Court or that the facts alleged do not constitute any offence or that the conviction has been based on no legal evidence or otherwise for securing the ends of justice. Shahidul vs State 51 DLR 222 Section 561A— A person having had prayed for rejection of his petition or appeal can not be given such latitude as to invoke the aid of section 561A CrPC. Shamsur Rahman alias Shamsu Moral and another vs State 51 DLR 338 Sections 561A & 145— 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. Mozqffar Ahmed vs State and others 49 DLR 485 Sections 561A & 145— When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under section 145 CrPC. Abul Bashar and another vs Hasanuddin Ahmed and others 51 DLR (AD) 14 Sections 561A & 145— When the Civil Court is already seized with the question of regulating possession of the land between the same parties the Magistrate acted without jurisdiction in initiating the proceeding under section 145 CrPC. Abdul Majd Mondal vs State and another 51 DLR 287. Sections 561A & 195—In a proceeding where a forged document has been used the Court concerned should make the complaint. The criminal court should not take cognizance on a private complaint. The want of complaint under section 195 is incurable and the lack of it vitiates the whole trial. Wahida Khan vs Shakar Banoo Ziwar Sultan and State 48 DLR 286 Sections 561A & 265C—We do not find any reason to quash the instant criminal case by involving our inherent jurisdiction under section 561A CrPC as the Code under section 265C provides for an alternative remedy. Salahuddin (Md) and others vs State 51 DLR 299. Sections 561A, 439A & 439(4)— The Sessions Judge's decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. He is free to go to any appropriate forum to challenge the Sessions Judge's decision. But he cannot go to the High Court Division with another revisional application, as such an application—better known as second revision—is expressly barred by section 439. Though the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still it can interfere with the Sessions Judge's order by invoking its inherent power for the limited purposes as set out in that, section namely, 'to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure ends of justice'. Sher Ali (Md) and others vs State and another 46 DLR (AD) 67. Sections 561A & 439(4)—As there is nothing in the impugned order requiring to prevent abuse of the process of the Court or to secure the ends of justice, the revisional application is barred under the amended provision of section 439(4) of the CrPC. Anower Hossain and others vs Md Idrish Miah 48 DLR 295. Section 561A— The cause of action for prosecution will arise under clause (c) of the proviso to section 138 of the Negotiable Instruments Act on the failure of the appellant pay the amount within 15 days of the seipt of the notice of the complainant. In the present case, the cause of action arose on 19-1-96 and the petition of complaint was required to be filed within one month from 19-1-96 in compliance with clause (b) of section 141 of the Act which having not been done by the complainant the cognizance of the offence cannot be taken upon such complaint and hence the impugned proceeding is quashed. SM Anwar Hossain vs Shafiul Alam (Chand) & another 4 BLC (AD) 106 Section 561A— In view of the provisions of section 3 of the Anti-Corruption Act, 1947 and paragraph 59 of the Anti-Corruption Manual the investigation held by an Assistant Inspector of the Bureau of the Anti- Corruption was not illegal and without jurisdiction as has been rightly found by the High Court Division as the investigation by an Assistant Inspector does not per se become without jurisdiction and a proceeding cannot also be quashed. Abul Hossain (Md) vs State 4 BLC (AD) 122 Section 561A— Unless the auditor under section 53 of the Wakf Ordinance held that a Mutwalli was guilty of breach of trust it would not make out a case of breach of trust on the vague allegations as to his failure to disburse the dues due to the beneficiaries. Nazrul Islam Motlick vs Khowaj Au Biswas and another 4 BLC (AD) 239 Section 561A— Section 110 of Banking Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the Banking Company are deemed to be public servants under section 21 of the Penal Code and hence the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent. Moreso, section 5 of Act II of 1947 speaks of the offences as mentioned in the schedule of the Act to be tried by Special Judges and in the schedule there are sections 403 and 477A of the Penal Code with which the accused has been charged for committing misconduct as a public servant. International Finance Investment and Commerce Bank Ltd vs Abdul Quayum and another 4 BLC (AD) 255. Section 561A— Inherent jurisdiction can be exercised even after framing of charge against the accused on the ground that the allegation of facts even if true do not support the accusation or any other offence against him but while framing charge or exercising inherent jurisdiction mixed question of fact and law cannot be resolved in an abstract manner without the facts surfacing at the trial. As found by the learned Third Single Judge, materials exist which allegedly connect the petitioner with the allegations against him and it is only at the trial that the probative value of the evidence led by the prosecution will be examined, there is no ground for interference. Moudud Ahmed vs State 1 BLC (AD) 30 Section 561A— It is well known that guilty intention as an ingredient of an offence is required to be proved by evidence and circumstances at the trial and this matter cannot be considered for quashing the proceeding under section 561 CrPC. It is enough that allegations are there in the petition of complaint constituting the alleged offence about which there is no doubt in the present case. Tamizul Haque vs Anisul Haque 1 BLC (AD) 169. Section 561A— A prima facie case of abetment of the alleged offences against the petitioner has been disclosed in the petition of complaint and the provision of Criminal Law Amendment Act, 1958 has also made abetment of the alleged offences punishable, and as such the High Court Division rightly refused to quash the proceeding. Abul Hossain Abu vs State 1 BLC (AD) 173. Section 561A— A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case. Rahela Khatun vs Md Abul Hassan and others 1 BLC (AD) 176 Section 561A— On the allegation as made out in the FIR it has been prima facie made out that the accused petitioners were engaged in the production or adulteration of drug and medicine and as such a prima facie case has been made out against them. The question as to whether the persons were really engaged in manufacturing adulterated ampiciline at the relevant time is a matter to be decided on evidence at the time of trial and as such the question of quashing the proceeding does not arise. Faziul Hoque Bhuiyan (Md) and others vs State 1 BLC (AD) 181 Section 561A— It appears from the complaint-petition that from the very beginning of the marriage demands for money were being made and that Taka 50,000.00 was demanded as a dowry for the last time. Whether this demand constituted ‘dowry’ can be determined on evidence during trial and, as such, it is not a fit case for quashing the proceeding. Lutfar Rahman (Md) vs Khadiza Khatoon and another 1 BLC (AD) 182 Section 561A— Upon a plain reading of the petition of complaint it appears that a prima facie case of criminal offence has been clearly made out. In a proceeding under section 561A CrPC. the High Court Division has little scope to scrutinise the truth or otherwise of any document or other evidence which may be used as a defence in a criminal proceeding. The impugned judgment and order do not warrant any interference. Shamol Chandra Das vs State and another 1 BLC (AD) 140 Section 561A— From a plain reading of the petition of complaint it is clear that the initial intention of cheating and the elements of criminal breach of trust have, very well, been alleged therein and, as such, on the face of these allegations it is difficult to say that no prima facie case has been alleged to have been committed by the petitioners under sections 406/420 of the Penal Code. The impugned judgment and order of the High Court Division do not suffer from any illegality. Seeking leave to appeal without appearing in the High Court Division is disapproved. Habibur Rahman (Md) and another vs State, through the Deputy commissione, Narayanganj and another 1 BLC (AD) 146 Section 561A— When a prima facie case is made out and the case is at the trial stage the trial Court should be allowed to proceed with the case and prosecution should not be stifled. The High Court Division was correct that under the circumstances of the case inherent powers of the court could not be exercised for quashment of the case. Sayed Abu Zafar vs State and another 1 BLC (AD) 188 Section 561A— Whether the petitioner without competitive tender, without verifying the market price, without approval of the concerned ministry of the Government made the questionable purchase by abusing his position as the Administrator of the Corporation in order to obtain for himself or for any other person pecuniary advantage, is to be decided on evidence at the trial and as such the question of an abuse of the process of the court does not arise at all. Abdul Malek vs State 1 BLC (AD) 237 Section 561A— The petitioner was a fugitive from justice from 1-1-96 as found by the High Court Division and the petitioner has failed to satisfy that he was not an absconder since 1-1-96 and also he was not aware of the judgment of the Special Tribunal and as such he is not entitled to any relief under section 561, CrPC. Alamgir vs State 3 BLC (AD) 72 Section 561A— When there are allegations in the petition of complaint that co-accused in collusion with the present petitioner who was a guarantor sold/removed the mortgaged properties by breach of trust and caused financial loss to the complainant Bank, the proceeding cannot be quashed as has been rightly found by the High Court Division. Ansar Ali vs Manager, Sonali Bank 3 BLC (AD) 86. Section 561A— In spite of issuance of repeated summons and warrant of arrest the respondent No. 2 did not appear before the Magistrate concerned but prayed for quashing the proceeding before the High Court Division without praying for bail for which it was the duty of the High Court Division to reject the quashing petition. Mowlana Md Yusuf vs State and another 3 BLC (AD) 171 Section 561A— Admittedly, petitioner was not known to the informant and none of the seizure list witnesses recognised the petitioner while fleeing away leaving his basket nor disclosed his name to the informant and in such facts and evidence on record learned Special Tribunal was not justified in convicting the petitioner merely relying upon hearsay evidence of the informant and as such the impugned judgment is quashed. Montas Mia @ Montu Mia @ Montaj Ali vs State 3 BLC 308 Section 561A— When a duly constituted Enquiry Committee in its report opined that the accused persons had contravened the provisions of section 17 of the Ordinance and the Magistrate on being satisfied about the same had taken cognizane against the accused persons they would get chance to defend themselves and as such no failure of justice has occasioned in taking cognizance against them. Shainpukur Holding Ltd vs Security Exchange Commission 3 BLC 148 Section 561A— The allegations as alleged in the FIR prima facie constitute the offence of cheating and forgery and that the present dispute is not a civil dispute for which the proceeding cannot be quashed. Aga Kohinoor Alam vs State 3 BLC 204 Section 561A— The inherent powers of the High Court Division mentioned under section 561A of the Code can be exercised only for either of the three purposes which are firstly, to give effect to any order under the Code, secondly, to prevent abuse of the process of the Court and thirdly, to secure the ends of justice. Nazrul Islam alias Amirul Islam vs State 3 BLC 246 Section 561A— The High Court Division under inherent power can quash the judgment of a Tribunal if the case is of “no evidence”. While exercising such inherent power the High Court Division would not embark upon an enquiry as to whether the evidence is reliable or not alike the functions performed by the Court/Tribunal or the Appellate Court/Appellate Tribunal. Nazrul Islam alias Amirul Islam vs State 3 BLC 246. Section 561A— As the Tribunal got the jurisdiction to hold the trial, the facts alleged against the accused petitioner did constitute criminal offence and the conviction had not been, also, based upon “no evidence” for which it cannot be said that there is no foundation for the conviction and sentence of the petitioner. Nazrul Islam alias Amirul Islam vs State 3 BLC 246. Section 561A— Since the search and the recovery was not conducted in presence of independent witness and the absence of seizure list witness together with absence of incriminating articles allegedly recovered from the control and possession of the accused petitioner and others has made the whole prosecution case unworthy to believe and as such the impugned judgment and order of conviction is quashed. Abu Taleb vs State 3 BLC 292 Section 561A— Although no illegality was committed by the trial Court in trying the petitioners in absentia but the charge brought against the petitioners was not proved at all as the petitioners were charged for demanding subscription from Arman but the prosecution gave out a different case in Court for which the impugned judgment and order of conviction and sentence are set aside. Anwar and another vs State 3 BLC 363 Section 561A— Considering the facts and circumstances of the case it appears that neither there is any mens rea on the part of the petitioner nor is there any ingredients of sections 406/420 of the Penal Code resulting thereby the proceeding against the petitioner is quashed. Nurul Huq Ruzbu vs State and another 3 BLC 374 Section 561A— The allegations as disclosed in the FIR or in the charge-sheet do not disclose any offence either under the Special Powers Act or any other law and as such the proceeding is an abuse of the process of Court and for ends of justice it is quashed. Atiqur Rahman Chowdhury (Md) vs State 3 BLC 473 Section 561A— Taking into consideration the opening given by the Legal Adviser for releasing the property from the list of rested property it was recommended by the Additional Deputy Commissioner (Rev) to the Ministry concerned who enquired into the matter and became satisfied that the property in question was not vested or abandoned property and thereby released the same. In such circumstances the Legal Adviser committed no offence of forgery and criminal breach of trust in giving his opinion for releasing the property and the proceedings was quashed. Abdus Samad (Md) vs State 1 BLC 63 Section 561A— When there is a prima facie case regarding purchase of sodium light by the Administrator of Dhaka City Corporation by abusing his official power this court would not embark upon an enquiry as to whether the allegation is reliable or not and would not stifle the proceeding before the prosecution gets an opportunity to bring evidence in support of their case and it cannot be said that the prosecution is barred by law or that the Court has no jurisdiction to try the case whereby no interference is called for to secure the ends of justice or to prevent an abuse of the process of the Court. Abdul Malek vs State 1 BLC 446. Section 561A— In exercising the power under section 561A of the Code of Criminal Procedure to do real justice this Court cannot help a person who is flouting an order of a Court on mere technical ground and thereby helping in avoiding the payment of fine imposed by a village Court which shall be recovered by Union Parishad concerned in accordance with Local Government Ordinance, 1976. Nur Mohammad Khan vs Abdul Jabber Munshi and State 1 BLC 17. Section 561A— Inherent power can be exercised even after failure to condone the delay in filing the criminal appeal and as it is a case of no evidence relating to the petition the conviction and sentence is quashed as it amounts to abuse of the process of the Court. Faziul Haq Sikder vs State 1 BLC 173 Section 561A— The allegations as made in the FIR, even taken as it is, the same does not disclose any offence under section 409 of the Penal Code and section 5(2) of the Act II of 1947 and there is also nothing to show that the petitioner was entrusted with the money which is alleged to have been paid in excess or the petitioner had domain over the said amount or that the petitioner misappropriated the said amount for his own benefit or benefit of others and as such the continuation of the proceeding is nothing but an abuse of the process of the court and as such liable to be quashed. ARM Rafiqul Islam vs State 1 BLC 531 Section 561A— The power to be exercised under section 561.A CrPC is highly discretionary. Such an extraordinary and discretionary power cannot be exercised in favour of the persons who have themselves disrespected the Court complained of. Dr Ahmed Sharif vs State and another 1 BLC 563 Section 561A— It appears from the petition of complaint that element of offence under section 420 of the Penal Code is made out, though cognizance was taken and charge was framed under sections 406/423/109 of the Penal Code. Court is competent to alter or amend the charge at any stage of the proceeding before pronouncing the judgments and as such no illegality in the I impugned order framing charge against the accused person under some wrong sections of the Penal Code. Abu Yusuf Mia (Md) and another vs Md Khorshed Anwar 1 BLC 553 Section 561A— As in the petition of complaint it has been categorically stated that by deceitful means the accused induced a belief in the mind of the complainant that she is lawfully married to him by exchanging garlands and developed carnal relationship with her disclosing a prima facie case of an offence under section 493 of the Penal Code and the trial had already commenced and recorded the evidence of PW 1 and as such the proceeding cannot be quashed at this stage. Arzoo Mia (Md) vs State and another 4 BLC 39. Section 561A— Section 3(2) of the Anti- Corruption Act, 1957 provides that subject to any order of the Government, officers of the Bureau of Anti-Corruption shall have power to enquire or hold investigation throughout Bangladesh and shall have such powers which the police officers are empowered in connection with investigation and further the paragraph 59 of the Anti-Corruption Manual expresses that the investigation held by an Assistant Inspector was not without jurisdiction and as such the proceeding cannot be quashed. Abu Sufian Mia vs State 4 BLC 193 Section 561A— Hartal is an unlawful assembly if criminal force is applied in its favour or to oppose it -While a hartal is observed by an assembly of five or more persons and their associates without holding procession or picket it will not be an unlawful assembly but if any criminal force is applied to observe such hartal then the members of the unlawful assembly falling within the purview of the fifth clause to section 141 of Penal Code will be liable to be punished under section 143 of Penal Code. Hence the procession or other activities in support of applying force to observe hartal shall be unlawful assemblies including to oppose such hartal. State vs Md Zillur Rahman and others 4 BLC 241 Section 561A— The alleged allegation against the petitioner is that she took money twice for the same work through bill No. 3 but it is contended on behalf of the petitioner by placing the rule application wherein it has been stated that the bill No. 3 in question was paid in part and its errors were corrected by bill No. 4 long before the initiation of the impugned criminal case when IPSA did not make any complaint in the matter and when the final bill was yet to be submitted it is not understood the necessity of lodging the FIR without the concurrence of IPSA and hence the proceedings is quashed. Lailun Nahar Ekram vs State 4 BLC 366 Section 561A— The Labour Court took cognizance of offence under section 20 of Payment of Wages Act as the accused petitioner contravened sections 4, 5, 7 and 25 of the Act but alike the provisions of IRO the Labour Court under the Payment of Wages Act, has not been given the same powers as are vested in the Court of Magistrate, First Class under the Code of Criminal Procedure for the purpose of trying an offence and hence the Labour Court cannot take cognizance of the said offence and as such the proceeding is quashed. PM August, Director Operations vs Chairman, First Labour Court 4 BLC 402 Section 561A— The Court under section 561A, Code of Criminal Procedure could examine the admitted documents of the accused. In the instant case on a plain reading of the first information report and charge sheet it would appear that the facts stated therein clearly and manifestly fail to prove the alleged charge against the petitioner is an abuse of the process of Court and interference is required under its inherent jurisdiction to secure the ends of justice and hence the proceeding is quashed. Shokrana (Md) vs State 5 BLC 611 Section 561A— The learned Judges of the High Court Division while delivering earlier judgment did not take into consideration two leading decisions wherein it has been held that where an Act repeals an earlier Act, and a different intention appears, the repeal shall not affect any liability incurred or punishment incurred in respect of any offence committed against any enactment so repealed and hence the earlier judgment of the High Court Division was given “per incuriam” and hence it is directed that the Special Tribunal then constituted for trial of the cases under the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 to proceed with case then pending in the Court of Special Tribunal No. 18, Dhaka from the stage it was quashed by the High Court Division earlier exercising the inherent powers reviving the proceeding in Special Tribunal Case No. 458 of 1996. Where there is a conflict between two decisions of the High Court Division the latest decision will prevail. Abul Kalam Khan vs Reaz Morshed and another 5 BLC 528 Section 56 1A— The publication of notice under section 27(6) of the Special Powers Act is not required in this case as the convict petitioner and two others absconded after being enlarged on bail and it cannot in any way be said that there is no evidence for implicating the petitioner and two others and the petitioner was a fugitive from justice and hence the impugned judgment of conviction and sentence cannot be quashed. Toffazel Hossain vs State, represented by the Deputy Commissioner 5 BLC 44 Section 561A— If there is any provision in the Customs Act for levying any tax or customs duty upon the petitioner for purchasing the car that may be brought into action under that Act and not under the criminal law or Penal Code and, as such, the proceeding is quashed as the trial of the petitioner will be an abuse of the process of law and court and the petitioner will be harassed unnecessarily. Golam Sarwar vs State 5 BLC 125 Section 561A— In the quashing proceeding the High Court Division is only to see whether there are materials on record to show that the allegations made in the FIR and the charge-sheet do in fact constitute an offence but it cannot perform the function of a trial Court in quashing the proceeding. Ali Akkas vs Enayet Hossain and others 2 BLC (AD) 16 Section 561A— It is contended that the petition of complaint does not disclose any material which constitutes the offences under sections 493 and 313 of the Penal Code but upon a plain reading of the petition of complaint, the Court is satisfied that it was not a proper case where the High Court Division could have rightly exercised its inherent power for quashing the proceeding and in a revision the petitioner had no vested right of being heard. Aminul Islam vs Rokeya Begum and another 2 BLC (AD) 60 Section 561A— While discharging the Rule for quashing the order of personal appearance the High Court Division directed the Authorised Officer, KDA to demolish the unauthorised construction in question which the appellant wants to expunge. While the proceeding under section 12(1) of the Building Construction Act is still pending in the Court of the Chief Metropolitan Magistrate, Khulna and awaiting decision on merit as to whether any direction will at all be necessary upon the KDA to dismantle the alleged unauthorised construction which was not the subject matter under consideration before the High Court Division in the revision case and accordingly, the impugned unwarranted direction was expunged. Champak Ranjan Saha vs Authorised Officer Khulna Development Authority and others 2 BLC (AD) 110. Section 561A— As the misappropriation of school money by all the accused persons having been alleged in the petition of complaint and the same allegation has also been made by the complainant under section 200 CrPC, the High Court Division has rightly refused to quash the proceeding. Habibur Rahman vs Md Fazlur Rahman and another 2 BLC (AD) 152. Section 561A— As the allegations made in the FIR constituted offence under sections 25B and 25D of the Special Powers Act, 1964 and the charge had already been framed, the High Court Division committed no illegality in refusing to quash the proceeding and that the submission of seizure took place 30 miles away from Indian border is not enough to stifle the prosecution without evidence being led. Kabir alias Bakiruddin and others vs State 2 BLC (AD) 178 Section 561A— The Sessions Judge cannot direct the Magistrate to take cognizance of the offence and the impugned order so far it relates to such direction is set aside and quashed. Abdur Rouf and others vs State and another 5 BLC 178 Section 561A— Although it appears to be a condition precedent of the bail but nevertheless it was an agreement by the petitioners by way of undertaking to the opposite party No. 2 and hence no illegality was committed by the learned Metropolitan Sessions Judge in rejecting the prayer to delete taka one lac from the order granting bail to the petitioners. Rezaul Haque Milky and another vs State and others 5 BLC 435 Sections 561A— Admittedly, several documents have been created by different persons showing transfer of the case land and for the reasons that the petitioners also got their deed rectified after filing a civil suit where the complainant unsuccessfully tried to be impleaded as party and that the complainant also purchased a portion of the case land and in such circumstances only civil suit can resolve the legal conflict finally and effectively and no criminal liability can be saddled upon the accused-petitioners and hence the proceedings against the petitioners are abuse of the process of the Court. Moulana Abdul Hakim and ors vs Md Siddiqur Rahman and another 5 BLC 422 Section 561A — As the present case was neither heard nor disposed of on merit, the application for restoration is allowed recalling the order of discharge for default restoring to its original file and number. Shamsul Alam vs State 5 BLC 601 Section 561A— On a perusal of the First Information Report and the charge sheet it prima facie appears that the offence alleged against the accused petitioner is an economic offence against the State and society as a whole attracting a clear prima facie offence under section 5(2) of the Prevention of Corruption Act, 1947 and hence the proceeding cannot be quashed. Group Captain (Retd) Shamim Hossain vs State and another 5 BLC 662. Section 561A— In this case talak was pronounced on 8-9-99 but the notice was served upon the complainant only on 14-1-99 but no notice was served on the Chairman of the Arbitration Council concerned and hence there was no legal divorce on 14-1-99. As there is element of the offence under section 4 of the Dowry Prohibition Act, the proceeding cannot be quashed. Giasuddin Khan (Md) vs Beauty Begum & anr 5 BLC 670. Section 561A— The FIR discloses a strong prima facie case against the petitioner for which without holding trial his innocence cannot be proved by an application under section 561 A of the Code. Imam Anwar Hossain vs Dr Hasmat Ara Begum, State 2 BLC 152. Section 561A— As the petition of complaint discloses an initial intention to deceive the complainant, who was, persuaded to advance a large amount of money to the accused persons and, as such, there is no ground for quashing the proceeding. Kamrul Islam (Md) vs Atikuzzaman 2 BLC 227 Section 561A— As the allegation of demanding dowry with threat to divorce comes within the mischief of section 4 of the Dowry Prohibition Act and not under section 3 for which the trial Court is directed to frame charge against the petitioner Nos. 2 to 5 under section 4 of the Act alike the petitioner No. 1. Moniruzzaman (Md) (Dablu) and others vs State 2 BLC 413 Section 561A— Quashing proceeding in the stage of investigation—As the victim girl was above the age of 18 years and her affidavit before a Notary Public shows that she had voluntarily at her free will gone out with the petitioner and had married him in accordance with Muslim Law of Marriage and in support of that a copy of Nikahnama was filed for which there is prima facie no ingredients to proceed with the case under section 366 of the Penal Code or under the Cruelty to Women and Children (Special Enactment), 1995 and such proceeding is an abuse of the process of law and it is quashed even in the stage of investigation. Manik (Md) alias Md Akkash Khan (Manik) vs State 2 BLC 418 Section 561A— Trial in absentia without publication vitiates the trial—case remanded to the trial Court—The petitioner was tried in absentia by the Special Tribunal but the provisions of section 27(6) of Special Powers Act was complied with by the Magistrate concerned. The petitioner was apprehended 3 years after the pronouncement of the judgment which is under challenge under section 561A of the Code. The High Court Division under inherent powers to secure ends of justice can send back the case on remand to the trial Court for giving an opportunity to the petitioner to cross examine the PWs and to try the case of the petitioner only in accordance with law as the retrial was vitiated for non-compliance of the mandatory provision of law by the Special Tribunal. Abdul Khalique alias Mona vs State 2 BLC 423 Section 561A— The Sessions Judges are not ex-officio Special Judges and unless they are appointed under section 3(1) of the Criminal Law Amendment Act, 1958 by notification made in the official gazette they cannot try cases as Special Judges but it cannot be a ground for quashing the proceeding. Since no notification in the official gazette is forthcoming appointing the Sessions Judge, Jhalakati as Special Judge the case should be sent to the Divisional Special Judge, Khulna for disposal instead of trying the same by the Sessions Judge, Jhalakati. Mozahar Ali Howlader vs Lal Mia Talukder 2 BLC 581. Section 561A— Failing to get an order of Division I in the jail from the CMM on a number of times the petitioner when applied for Class I status in the jail in the month of March, 1997 whereupon the CMM called for a report from the Officer-in-Charge, Gulshan Police Station about the status and condition of the petitioner which having not been supplied by the said police officer, the petitioner ultimately failed to obtain favourable order from the CMM moved unsuccessfully the Sessions Judge who rejected the application on the ground that it was premature. The petitioner had no other alternative but to invoke the inherent jurisdiction under section 561A, CrPC for ends of justice and such application is quite maintainable. Major (Retd) M Khairuzzaman vs State 2 BLC 646. Section-561A Sections-366, 366A& 368 of the Penal and sections-4 & 10 of the Cruelty to Women (Deterrent punishment) ordinance-1983- Joinder of schedule and non-schedule offence- The Special Tribunal committed illegality in taking cognizance of the offences schedule and nonschedule- Held: We are of the view that it would not be just and proper to quash the entire proceedings of the case. Md. Biscuit and others Vs. The State 1 BLT (HCD)-78 Section-561A A person accused in a criminal case can only prefer an application under section 561 A, for quashing the said proceeding if he becomes previously unsuccessful in his application either under section 265C or 241 A, otherwise his application under section 561A shall be premature. Tarini Mohon Ghosh Vs Gobinda Prashad Das 3 BLT (HCD)-102 Section-561-A Remand- Held: We are of the view that the trial with respect to the petitioner's is vitiated for non-compliance of the mandatory provision of law and it should go back on remand to the trial court for giving an opportunity to the petitioner to cross-examine the P. Ws. and to try the case with aspect to the petitioner only in accordance with law. Abdul Khaleque @ Mona Vs. The State 5 BLT (HCD)-155 Section-561A The first F. I. R. which was lodged at Shan Thana on 19.4.90 ended in charge-sheet dated 17.3.90 and the accused persons which included the present petitioners were on trial before the learned Additional Sessions Judge under section 395/397 of the Code which ended in the conviction of petitioners. The second F. I. R. which lodged with Nalcity Police Station also ended in charge sheet which was submitted 12.89 and the present petitioners were paced on trial before the learned Special Tribunal under section 19(a) and (f) of the Arms Act. On application for quashing of the proceedings. Held: It appears that the facts alleged in the present case are precisely those facts which have been alleged by the prosecution in the earlier dacoity case. During continuation of the investigation the I. O. recovered the rifle which was taken away by the petitioners and that was the alamat of the dacoity case. It is not the case of the prosecution that independent of the taken away of the rifle, the present fire arm was recovered from the possession of these petitioners. The recovery of the rifle by the Inspector was a part of the investigation of the dacoity case and there is no independent occurrence or acts in the recovery of the rifle- The second trial which is sought to be quashed is involving the offence punishable under section 19(a) of the Arms Act. But as this case occurred during the same transaction or arose from the same facts already decided by the Sessions Judge this cannot be allowed to be proceeded further as there is an express prohibition under section 403(1) of the Code of Criminal Procedure. Apart from the prohibition against double jeopardy in this section. Article 35 of the Constitution also has the similar prohibition. So reading the provisions of section 403(1) (2) of the Code of Criminal Procedure together there can be no doubt that in the facts and circumstances of the case the second trial appeared to us to be unwarranted. Though the second trial that is the present proceeding is with respect of different offences that is recovery of fire-arms but that arose out of the same transaction which was the subject matter of the dacoity case which ended in conviction of the petitioners though the charge-sheet has been submitted under section 19(a) of the Arms Act but the fact remains that the recovered fire arms is the subject matter of the earlier case for which the petitioners ought to have been charge under the appropriate section of the Penal Code for possessing the alamats of dacoity which has not been done into a separate proceeding has been initiated by the prosecution- we hold that the proceeding is illegal. Relied On P. L. D. 1963 (Dacca) 661 1985 BLD (AD)323 Abdur Rashid Vs. The State 3 BLT (HCD) 242 Section-561A Commission of offence by the respondent under Section 406 and 420 of the Penal Code- The case of the petitioner has been based upon a contract, mere breach of which could not give rise to a criminal prosecution. The fact that the respondent subsequently did not abide by his commitment to pay the balance amount of the money might create civil liability for him, but this fact will not fasten criminal liability on the respondent for the alleged offence under sections 406 and 420 of the Penal Code. A. N. Emdaduddin Chowdhury Vs. Waysur Rahman & Ors. 4 BLT (AD)-182 Section-561A Allegation under Sections 406/420 of the Penal Code- The learned Judges of the High Court Division upon reading the petition of complaint rightly held that the petitioner could not impute any mensrea in the conduct of the respondents for refusing to pay money on the basis of alleged agreement and as such the alleged dispute being of civil nature no criminal proceedings lies thereupon.-High Court Division rightly quashed the proceedings. S. B. Zaman Vs. Delip Kr. Shaha 4 BLT (AD)-231 Section-561A Quashed the proceeding- Kotwali P. S. Case, under section 420/471/109 of the Penal Code pending then in the Court of a Magistrate, 1st class-police upon investigation submitted charge sheet under the aforesaid sections against the respondent No.1 and others. The High Court Division held that since the offence is relates to forgery of a document which has been given in evidence in the civil Court, cognizance of the offences alleged could not be taken except on the complaint of that court under section 195 (1) (C) Cr. P. C. and accordingly quashed the proceeding - petition is dismissed. M. S. B. Ziwar Sultan Beyed Vs. M. W. Khan & Anr. 4 BLT (AD)-154 Section-561A The admitted position being that the Civil court in Title Suit Nos. 216 of 1994 and 122 of 1996 long before initiation of the impugned proceedings under Section 145 Cr. P. C. had passed orders on 4.10.95 a 23.11.96 respectively for maintaining status quo in respect of the disputed plot between the parties who are also parties the aforesaid proceedings under Section 145 Cr. P. C. the learned Judges of the Court Division rightly quashed impugned proceedings. Hazi Abul Bashar Vs. Hasanuddin Ahme Ors 6 BLT (AD)-193 Section-561A Anti-corruption officer lodged an F. R. with Gulshan P. S. on 27.9.88 in spite several dates fixed for police report and sanction order, the Government decided to proceed further against the accused petitioners and accordingly the accused. petitioners were discharged on 12.6.90-26.12.90 the I O submitted a charge- sheet along with a sanction order and accordingly the learned Magistrate under his order of the same day accepted the charge sheet and issued warrants of arrest against the petitioners along with proclamation and attachment of their properties treating the petitioners absconded from the case- when there was no proceeding pending, no ground invocation of section 87 or section 88 of Code of Criminal Procedure against the used petitioners are without jurisdiction should be quashed. Maulana M. A. Mannan & Ors Vs The State 3 BLT (HCD)-71 Section-561A Inherent power under section 561 of the Code of Criminal Procedure is available not only to the High Court Division but also to all the Courts for purpose of doing justice by bringing in all the parties that are requested to be present for an effective final desposal of the case. The power of the Magistrate to add legal representative on the death of any of the parties in a proceeding under section 145 of the said Code during the enquiry stage as provided under section 145(7) of said Code would thus extend to a Criminal Revisions pending before the higher courts while examining the legality of an order passed in the proceeding section 145 of the Code and the said proceeding id not abate or become infructuous merely on the death of a particular parry during the proceeding whether at the enquiry stage or at a revisional stage. AIR 1924 Mad 149 relied on. Abdul Ali & Ors Vs Md. Mesbauddin 3 BLT (HCD)-184 Section-561A In the instant case, the petitioner and others alleged misappropriation of some C. I. sheet and Taka 46,000/-by the chairman and the petitioner's signature is proved to be genuine and other four petitioner's signature are proved to be false and thereby the petitioner alleged to have been commit forgery in the petition- Mere signing of the petition in anothers name who did not give authority sign without any intention to cause damage or injury to the public or any person and actually causing no injury or damage does not come within the definition of forgery .In that view of the matter cognizance taken by the learned Magistrate and charge framed by him against the accused petitioner under section 465 of Cr. P. C. are illegal and proceeding of the case is liable to be quashed. Abul Kashem Bhuiyan Vs. The State 6 BLT (HCD) -109 Section-561A The title suit was instituted for specific performance of contract by the opposite party. The defendants- petitioners contested the suit. The petition of complaint under section 406/109/ of Cr. P. C. was filed against the petitioners by the opposite party before the learned S. D. O. the learned S. D. O. recorded the initial statements- These statements do not constitute the offence alleged in the petition of complaint. Further the relevant question appears to be of civil nature- continuance of the impugned criminal proceeding would amount to an abuse of the process of the court- the Rule is made absolute. A.F.M. Firojuddin Bhuiyan Vs Md. Yasin 2 BLT (HCD)-89 Section-561A Insertion of 561A in 1923 by Act No. XVIII of 1923 due to the fact that the High Court were hesitant to exercise their inherent power to secure the ends of justice. Abdul Jalil & Ors Vs The State 2 BLT (HCD)-90 Section-561-A Allegation against a mutwalli about breach of trust. Allegation against a mutwalli about breach of trust is subject to the scrutiny under section 52 of the Waqf Ordinance and since the legislature has set up a special forum for the determination of any matter connected with the audit and accounts of a waqf estate and if the accounts of a Waqf estate have been submitted to the proper authority all allegation including that of breach of trust must thereafter pass the initial scrutiny of the auditor under section 53 of the Waqf Ordinance before it can be even held prima facie that a mutwalli is guilty of breach of trust unless the auditor held so and that vague allegations against the mutwalli as to his failure to disburse dues to the beneficiaries or other act of misappropriation by him do not make out a case of breach of trust. Md. Nozrul Islam Mollick Vs. Md. Khowaj Ali Biswas & Anr. 7 BLT (AD)-10 Section-561A Charged under Section 406 and 420 of the Penal Code- in the instant case, the complainant has specifically alleged that the accused had fraudulently deceived him and thereby misappropriated Tk.5,00,000, which was clear from the conduct of the accused. It will be for the complainant to prove his allegations by evidence at the trial. He cannot be shut out at this stage by telling him that his remedy lay in a suit for Specific Performance of Contract. Md. Rustam Ali Mataubbar @ Alam Vs. Md. Salauddin & Ors 7 BLT (AD)-132 Section-561A Mizan and Sadek appeared before the Magistrate and after getting bail thej absconded, Shahidullah faced the trial but hf had not preferred any appeal under t| statutory provision. So they cannot invol the jurisdiction under section 561A of t! Code of Criminal Procedure. Mizan &Ors. Vs. The State 7 BLT (HCD)-232 Section-561A The Principal of a private college could not be prosecuted without the concurrence of the Governing Body and that the investigation against him having been done by a police officer of the rank of a Sub-Inspector was not competent as contended by the petition Counsel. Since the Principal of a private college was not an employee of the Government, there was no necessity of any investigation being held against him by a police officer above the rank of a sub-inspector. There is also no necessity of concurrence of Governing Body for investigation. Jitesh Chandra Sarker Vs. The State 7 BLT (AD)-221 Section-561A Offence underder section 420 Penal Code-alleged transaction in between complainant and the appellant is clearly admittedly a business transaction, appellant had already paid a part of the under the contract to the complainant, failure on the part of the appellant to pay complainant the balance amount under the does not warrant any criminal proceeding as the obligation under the contract is of nature. The learned Judges of the High Division were not justified in holding that petition of complaint having disclosed initial element of cheating, the case question cannot be quashed. Dewan Obaidur Rahman Vs. The State 7 BLT (AD)-227 Section-561A In the instant case the question of resorting to 561A Cr. P. C. does not arise because the Division Bench by the the Judgment and order dated 27.11.97 passed the order of discharge of the rule after considering the facts and circumstances of the case and also finding no substance in the rule. Whether there was enough consideration of the facts and circumstances and whether there was really any substance in the rule, is a matter for the court of appeal or the Appellant Division to consider. Md. Mozammel Haque Vs. The State 7 BLT (HCD) -206 Section-561A A proceeding cannot be quashed- The High Court Division observed that as the involvement of the petitioner transpired during the investigation stage the proceeding could not be quashed on the ground that his name was not mentioned in the FIR or, we add, on the ground that his name was included in the charge sheet on the recommendation of the public prosecutor. Md. Abul Hossain Vs. The State 7 BLT (AD)-232 Section-561A The investigation by an Assistant inspector does not per se become without jurisdiction and a proceeding cannot also be quashed merely because there is irregularity, if any, in the investigation. Md. Abul Hossain Vs. The State 7 BLT (AD) -232 Section-561A The prosecution case as set out in the petition of complaint has got prima facie ingredients of the offences alleged. The exact nature of the offence against the accused petitioners can only be thrashed out upon a trial. The prosecution should not be stifled when there is a prima facie case. Gazi Mozibul Huq & Ors Vs. Abid Hossain Babu & Ors 7 BLT (AD)-305 Section 436-Sessions Judge’s power to order inquiry—The jurisdiction of the Sessions Judge is wide enough to direct further inquiry by a Magistrate. If the Sessions Judge directs to make further inquiry by the Magistrate by holding a judicial inquiry it is fully within the express power given to the Sessions Judge under section 436 CrPC. Farid Ahmed vs State 44 DLR 30. Section 436-The Magistrate seemed to have acted within his jurisdiction to decide, on assessment of evidence on record, whether all or some of the accused are to be sent for trial. The order of the Sessions Judge having the effect of directing the Magistrate to take cognizance of the 8 accused against whom the latter found no prima facie case is not within the scope of further inquiry contemplated under section 436 CrPC. Mohibar Rahman vs Kuti Miah 44 DLR 112. Notice to the accused Notice to the accused is not necessary in a revision under section 436 Cr.P.C. for holding further enquiry against the dismissal of a complaint. Sirajuddowla and others Vs. The State and another, 15BLD(HCD) 607 Section 436-Sessions Judge re-assessed the evidence recorded by the Magistrate under section 202(2A) of the CrPC and apparently took cognizance of the case himself against the petitioners directing further enquiry into the matter by way of securing their attendance and ordering them to be sent up under section 205 CrPC before his court to stand trial. Held—Order of the learned Sessions Judge is not contemplated in section 436 of the Code of Criminal Procedure and, as such, he acted illegally in interfering with the order of the learned Magistrate as such. Syed Ahmed vs Habibur Rahman 42 DLR 240. Section 436-There is also no force in the contention that once the accused has been made party in the revisional application he acquires a right to be heard. As provision under section 436 only directs notice in a case where a person has been discharged and not in the case of an accused to whom no process has been issued under section 204 and when the complaint has been dismissed without a notice to him. Sirajudullah vs State 48 DLR 76. Sections 436, 439A and 561A—If any one is aggrieved by an order of discharge passed by a Magistrate, he can move the Superior Court under section 436 of the Code of Criminal Procedure for further enquiry but the Superior Court cannot direct the Magistrate to take cognisance of a case irrespective of the fact whether it is triable by a Magistrate or exclusively by the Court of Sessions. The Superior Coufl can merely order for further enquiry but cannot direct for taking cognisance of the offence. Jalaluddin vs State 60 DLR 581. Sections 436, 204(3) & 203—The order of dismissal of the complaint passed under sections 203 and 204(3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary. The principle, that an order prejudicial to an accused should not be made, without giving him – an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76. Sections 436, 205(1) & 203—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case. Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant- respondents remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53. Sections 436, 439 and 439A—Sessions Judge’s power to direct further, enquiry under section 436 CrPC on dismissal of complaint on an erroneous view of law. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. Sections 437 & 439—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60. Sections 436, 439A & 561A—Question raised in this Rule could very well be raised before the Sessions Judge and the Sessions Judge could set aside the order of the Magistrate framing charge against the petitioner if there was mont in the contention raised by the petitioner and after such discharge there was no scope for directing further enquiry under section 436 of the Code. Since this question was not noticed at the time of issuance of the Rule discharge of the same without considering merit of the same may cause undue hardship and unnecessary harassment to the petitioner. So this Court decided merit of the Rule which is otherwise not maintainable. Abdul Hai vs State 50 DLR 551. Section 438—When the Magistrate has only called for the case diary for his perusal upon allegations made in the naraji petition that the same will show a prima facie case against the accused, the reference prayed for against the step is premature. Nurul Hoque vs Bazal Ahmed 48 DLR 327. Section 438—Sessions Judges have been given revisional powers to make final orders but simultaneously their powers to make recommendation to the High Court Division for orders under section 438 have also been kept intact. Abdul Ahad vs State 52 DLR 379. Sections 438 & 439A—Though Sessions Judge has got power to make a reference to the High Court Division, it is not necessary now to make such a reference if the revisional application before him is to set aside any order of the Magistrate as he is competent enough to set aside such order. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127. Sections 438, 439A & 561A—Reference— Since the petitioner could not make out a case of quashing of the proceedings and since no such power is vested in the Sessions Judge the impugned order refusing to make a reference to the High Court Division suffers from no illegality. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127. Section 439—The jurisdiction of a Single Judge to hear a revisional application against an order of acquittal passed in a case involving an offence punishable with sentence of imprisonment exceeding one year is barred. Ahsan Sarfun Nur vs Nurul Islam 42 DLR (AD) 90. Section 439—Refusal of prayer for ad-interim stay while issuing Rule in criminal revision. When appellant clearly stated before the High Court Division while obtaining the Rule that she gave birth to a child just five months ago and it would be injurious to her health as also to the baby if both were to be placed under any type of custody at that critical stage it was not a judicious and sound exercise of discretion to refuse the said stay. Azima Begum vs Yusuf Khan 43 DLR (AD) 53. Section 439—Revision against order of acquittal—When the appellate Court and the High Court Division upon evidence and circumstances which is not unreasonable or perverse refused to believe the prosecution case, this court merely because a different view is possible of the evidence does not interfere with an order of acquittal. Abdul Hamid Mollah vs Ali Mollah 44 DLR (AD) 223. Section 439—Leave order was granted to examine the powers under section 439 CrPC as interpreted by the High Court Division. Kashem Ali vs State 40 DLR (AD) 294. Section 439—High Court Division made three propositions in defining the area for exercise of its power and authority. Kashem Ali vs State 40 DLR (AD) 294. Section 439—Administration of Criminal Justice with the change of time and circumstances attending the same—High Court Division to be a little more scrutinising even in a case of acquittal —whether misappreciation of evidence is never a sufficient ground for interfering with an acquittal. Kashem Ali vs State 40 DLR (AD) 294. Section 439—Direction for filing a separate application for bail while moving a revisional application whether proper—When the appellants were already on bail granted by the lower Appellate Court, the direction that has been given after rejecting the prayer for bail is not proper and is not in keeping with the normal practice and; procedure that is traditionally followed in the High Court Division in revision. In that view o the matter, the appellants will remain on bail already granted, till disposal of the revision case. Baneanzuddin Ahmed vs State 43 DLR (AD) 12 Section 439—Application for condonation delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247. Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40. Section 439—Application for condonation of delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247. Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40. Section 439—High Court Division in exercise of its power under section 439 CrPC has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act. The application on which the instant Rule was issued and was filed under section 439 of the Code of Criminal Procedure. We, therefore, find that this Court has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act, 1965. Jagodish Chandra Dutta vs MH Azad 41 DLR 257. Section 439—This Court for rectification of injustice may also go into facts, if in the determination of any question of facts, onus is wrongly placed upon any party or an incorrect principle has been applied in determining the question of fact or any material piece of evidence has been ignored or due to misconception of law, a wrong view has been taken by the court below. This court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the propriety of the impugned order or finding in question. In this view of ours, we are supported by a number of decisions of this court reported in 35 DLR (AD) 127 (Shafiqur Rahman vs Nurul Islam Chowdhury), 18 DLR (SC) 289 (Feroze Khan vs Captain Ghulam Nabi Khan), 15 DLR (SC) 150 (Muhammad Sami Ullah Khan vs State). Khandakar Md Moniruzzaman vs State 47 DLR 341. Section 439—The acquittal of co-accused whose case stands on the same footing as that of the appellants’ cannot be a ground for their acquittal when there is sufficient evidence on record justifying their conviction. A suo motu Rule is issued against acquitted accused to show cause why the order of their acquittal shall not be set aside and be not convicted like the appellants as they too appear to be involved in the offences proved against the appellants. Abdul Ali vs State 46 DLR 338. Section 439—In exercise of revisional jurisdiction High Court Division can in appropriate cases disturb findings of fact. Moslem All Mollah alias Moslem Molla vs State 48 DLR 427 Section 439—নিম্ন আদালত সাক্ষ্য প্রমাণ বিবেচনা করে যে সিদ্ধান্তে উপনীত হয়েছেন তার সাথে দ্বিমত পোষণ করলেই রিভিসন মামলার আসামীদের খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃ বিচারে পাঠান সঠিক নয় । শুধুমাত্র নিম্ন আদালতের সিদ্ধান্ত স্পষ্টতঃ ভ্রমাত্বক বা নায়ভ্রস্ট হলে বা নথি অস্পস্ট হলে বা আদালতের এখতিয়ার ত্রুটি পূর্ণ হলেই খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃবিচারে পাঠান উচিত । Abdul Aziz vs Sekendar Ali 50 DLR 111. Section 439—The High Court Division may also suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice. Reazuddin Ahmed vs State 49 DLR (AD) 64. Section 439—It is to be borne in mind that the High Court Division does not function as a court of revision for permitting the guilty person to escape the just reward of their misdoing on the ground of an unsubstantial technicality. Whether or not the High Court Division will exercise its Revisional jurisdiction in a given case must depend upon the facts and circumstances of that case only. Syed Ahmed vs Abdul Khaleque 51 DLR 43. Section 439—Merely because the court deciding a revision may arrive at a different conclusion would be justifiable in reversing the decision of the trial Court unless it is possible to demonstrate with certainty that none of the grounds upon which trial Court acquitted the accused is at all supportable. Ali Akbar vs State 51 DLR 268. Section 439—The judgment of the trial Court lacks in certain essential findings in respect of the offence but this by itself cannot be a sufficient ground for acquittal of the accused persons on appeal of in the face of evidence on record proving their guilt. Jahiruddin Ahmed vs Yasinuddin 52 DLR 97. Section 439—As a rule of practice Court regards 60 days as the period of limitation for filing a criminal revision. In spite of this, nothing prevents the Court from entertaining a revisional application filed beyond 60 days when the applicant can satisfy the Court that he was prevented by any sufficient cause from filing the revision earlier. Khadem Ali vs State 52 DLR 281. Section 439—A Court may cancel the bail granted either by itself or by a Court subordinate to it when allegations for cancellation are made by giving substantive proof of overt act on the part of the accused against the prosecution witness and not merely on vague, wild and general allegations. Mainuddin Chowdhury & others vs State 53 DLR 416. Section 439—Any person could bring to the notice of Court an illegality or material irregularity in the conduct of judicial proceedings by invoking revisional powers of the High Court Division under section 439 of the Code. Abdur Rahman Kha vs State 56 DLR 213. Section 439—In the instant case, there is no cogent reason to send the case back on remand on the flimsy ground that the prosecution has failed to file Kabinnama properly. Hence, retrial be allowed for ends of justice. Ashraful Alam State 57 DLR 718. Section 439—The revisional court does not interfere with the concurrent findings of fact save in exceptional circumstances as when a question of law of general public importance arises or a decision shocks the conscience of the Court. Montu vs State 57 DLR 504. Section 439—The revisional court is to look into the question whether there has been gross negligence on the part of the petitioner or inordinate delay in moving the revision application. Khaled Ahmed Chowdhury vs State 57 DLR 694. Section 439—Court can take suo motu cognisance of the matter under section 439, CrPC and set aside the conviction and sentence of other accused persons even though they were tried and convicted and sentenced in absentia and could not prefer any appeal. Abdus Sattar @ A. Sattar @ Sottar vs State 58 DLR 415. Section 439—In view of the fact that the petitioner was aged only 17 at the time of occurrence and there is no specific act of violence attributed to him, the maximum sentence awardable under the section is felt to be inappropriate and unwarranted. Rafiqul Islam vs State 58 DLR 362. Sections 439 & 439A—Revisional power of the High Court Division—It is true that the party in a revision case under section 439A is debarred from agitating his point before the High Court Division under section 439 of the Code, but the power has not been restricted by any clause of section 439 or by any law if it is considered necessary to prevent the abuse of the process of the Court. The order of the Sessions Judge being not in accordance with law requires interference and the aid of section 561A of the Code can be appropriately invoked there being no scope for a second revision. Dr Md Abdul Baten vs State 43 DLR 60. Suomotu rule by the High Court Division Under Section 439 of the Cr.P.C, the High Court Division may suomotu call for the record of the Courts subordinate to it and set aside any order passed by such Courts in any legal proceeding which has caused mis- carriage of justice, Md. Reazuddin Ahmed Vs. The State and another, 17BLD (AD) 123 Sections 439 & 435—The Additional Sessions Judge did not point out any illegality or irregularity in recording the evidence of witnesses examined by the prosecution or in the trial Court’s refusal to examine any witness produced. In such circumstances there was no justification for the Judge to make order permitting to examine witnesses at the time of fresh trial on remand that was ordered. Shamsul Haque Bhuiyan vs State 49 DLR 37. Sections 439 & 561A—Session 561A has been put under Chapter XLVI of the Code as “Miscellaneous;” so an application under this section must be registered as a miscellaneous case and not as a revision case under section 439(1) or under both sections. Sher Ali vs State 46 DLR (AD) 67. Sections 439, 439A & 561A—Propriety of exercising jurisdiction under section 561A CrPC to quash Magistrate’s order drawing up proceeding under section 145 CrPC—As the High Court Division’s revisional jurisdiction is concurrent with that of the Sessions Judge and although the High Court Division could decline to interfere for not moving the Sessions Judge, the interference that has been made cannot be said to be without jurisdiction. Jurisdiction under section 561A CrPC is not ousted in the presence of the revisional jurisdiction of the Sessions Judge under section 439A of the Code. The only question will be, has any case been made out either under section 439 or 561A of the Code? The answer will vary from case to case. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175. Sections 439 & 497—Since the petitioner did not get any opportunity to resist the application for cancellation of his bail and to present his case for maintaining the order granting him bail, the impugned order cancelling bail is set aside and the court in seisin of the case is directed to consider the matter afresh. Harun vs State 51 DLR 33. Sections 439, 497(5) & 498—Section 497(5) gives power to High Court Division to cancel bail to accused admitted on bail. Section 498 of the code does not empower High Court Division or Court of Sessions again to admit an accused on bail after his cancellation of bail. In the event of cancellation of bail by a Court of Session the accused again cannot invoke jurisdiction under section 498 of the Code and the remedy that lay for him is invoking Revisional Power under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259. Sections 439 & 498—Whenever a matter is brought to the notice of High Court Division and High Court Division is satisfied that a case is made out for exercising Revisional power suo moto, it can always do so in the interest of justice and can treat an incompetent proceeding to be a proceeding under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259. Sections 439(4) and 439A(2)—No Second revision lies in view of the law in Sections 439(4) and 439(A)(2) of the CrPC. The purported distinction sought to be drawn by the learned Judge of the High Court Division was mis-conceived and the obiter was unwarranted. Hazi Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196. Sections 439(4) & 561A—Under section 561A the exercise of inherent power is not restricted by any clause like section 439—The Court can exercise this power. So we think it proper to exercise the inherent power under section 561A the exercise of which is not restricted by any clause like section 439. In section 439 of the Code there is a bar, as subsection (4) of the section provides to the effect that in an appealable case the party who has right to appeal cannot invoke section 439. But there is no such restriction in section 561A. Khalilur Rahman vs State 41 DLR 385. Sections 439(4) & 439A—The idea of the High Court Division that both the courts—one under section 439(4), the other under section 439A—are equal in power and the judgment of one is the judgment of another, appears to be grotesque displaying perversity of thought. Sher Ali (Md) vs State 46 DLR (AD) 67. Sections 439A- The complainant- respondent can file a criminal revision under section 439A of the Code of Criminal Procedure against the judgment and order dated 28.09.2002 passed by the learned Metropolitan Magistrate, Dhaka in G.R. No.495 of 2001 but inadvertently he filed an appeal. On the facts and in the circumstances of the case, we are of the view that the memo of appeal may be treated as a revision and the learned Sessions Judge or any other Court shall dispose of the revision in accordance with law.......Enayet Chowdhury (Md.) =VS= The State, [3 LM (AD) 554] Section 439-The revisional juris- diction of the High Court Division vested in section 439 read with section 435 of the Code is exercised only in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality or for prevention of gross miscarriage of justice. Major Md Nazmul Haquevs State, 70 DLR 293 Section 439(2)- When any Court passes an order against a person, who has been discharged under sections 241A/ 265C, terming and treating him as an accused and thereby to commence investigation/further investigation/ inquiry against the discharged person, it would be an order made to the prejudice of the accused', as enunciated in section 439(2). When an order of judicial inquiry is passed by any Sessions Judge/Magistrate, it cannot be termed as an order 'prejudicial' to the accused, for, the accused-petitioner must not speculate in advance that the outcome of the judicial inquiry shall be against her/him. Dr Akhtaruzzaman vs State, 70 DLR 513 Sections 439(4) and 561A-Miscella- neous case under section 561A of the Code is hit by sub-section (4) of section 439 of the Code. Firozul Islam vs State, 70 DLR 744 Sections 439A and 439(5)- No revision against the order of acquittal passed by the Magistrate, lies under section 439A as it is barred under section 439(5) of the Code. Ismail vs State, 64 DLR 473 Sections 439A and 561A-The extra ordinary power of the High Court Division under section 561A of the Code cannot be invoked by a person after becoming unsuccessful in an application under section 439A of the Code except for some specific purposes set out in the provision itself, that is, to give effect to any order under the Code or to prevent the abuse of the process of any Court or to secure the ends of justice. Firozul Islam vs State, 70 DLR 744 Sections 439(4) & 561A—As there is nothing in the impugned order requiring to prevent abuse of the process of the Court or to secure the ends of justice, the revisional application is barred under the amended provision of section 439(4) of the CrPC. Anower Hossain vs Md Idrish Miah 48 DLR 295. Section 439(4)—Scope of a revision against an order of acquittal is very limited in view of the provision of sub-section (4) of section 439 of the Code and decisions of the higher courts. If the informant could prefer an appeal on the failure of the state to do so then the result could have been otherwise. Moreover, complainant has been given a limited right of appeal against an order of acquittal under the amended sub-section (2) of section 417 of the Code only on the ground of error of law. In such circumstances informant should also be given right to prefer appeal like the complainant and both of them right of appeal on the grounds of error of fact as well. Ali Akbar State 51 DLR 268. Sections 439(4), 439A & 561A—No Court can claim inherent jurisdiction to exercise power expressly taken away by legislation. Where there is an express provision in the Code barring the exercise of a particular jurisdiction (as under section 439) of this Court the jurisdiction may not be exercised under a general provision of the Code as under section 561A of the Code. In this connection reference may be made to the case of Kumar Singh Chhayor vs Emperor reported in AIR 1946 (Privy Council) 169 (172) wherein the Privy Council held that “no court can claim inherent jurisdiction to exercise powers expressly taken away by legislation” The instant application is hit by both sections 439A(2) and 439A of the Code. Abdul Jalil vs State 47 DLR 167. Sections 439(4), 439A & 561A—The Sessions Judge’s decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. He is free to go to any appropriate forum to challenge the Sessions Judge’s decision. But he cannot go to the High Court Division with another revisional application, as such, an application—better known as second revision—is expressly barred by section 439. Though the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still it can interfere with the Sessions Judge’s order by invoking its inherent for the limited purposes as set out in that, section namely, ‘to give effect to any order under Code, or to prevent abuse of the process of any court or otherwise to secure ends of justice’. Sher Ali vs State 46 DLR (AD) 67. Ss. 439 and 561A-Securities and Exchange Ordinance XIV of 1969 Ss. 17(e)(IT) (IV)-The learned Additional Sessions Judge, Dhaka framed changes on 16.3.1999 against the accused petitioner under section 17(e)(II)(iv) of the Securities and Exchange Ordinance, 1969 after hearing the parties. The petitioner challenged this order of framing charges against him. Prof Mahbub Ahmed Vs. Securities and Exchange Commission, 2 ALR (2013)-HCD-27. S. 439–If the Magistrate had passed an order of police remand despite the fact that the accused had been suffering for ailment, the latter had his remedy to prefer a revision petition before the Metropolitan Sessions Judge against the order. State Vs. Md. Aman Ullah Aman , 18 BLC (2013)-AD-81. S. 439-No Provision for second Revision: An order passed by the Sessions Judge or Additional Judge, as the case may be, under section 439A of the CrPC is not amenable to the revisional jurisdiction of the High Court Division under section 439 of the Cr.PC ...(Para 13). Md. Joaharul Islam Vs. The State (Criminal), 1 CLR (2013)-AD-146. Sections 439A—Jurisdiction of the Sessions Judge under section 439A is co-extensive with the revisional jurisdiction of this Court in all matters except quashing a proceeding. After the insertion of section 439A Sessions Judge in exercise of revisional power can set aside any order of the subordinate Criminal Court in addition to directing further enquiry under section 436 of the Code but cannot quash a proceeding. Abdul Hai vs State 50 DLR 551. Section 439A—Where the State does not file any appeal against the order of acquittal in a police case the informant is competent to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. But the Court of revision cannot convert a finding of acquittal into a finding of conviction. Amjad Hossain vs State 49 DLR 64. Sections 439A & 173—So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction. Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the Ain bit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future. It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time-honoured and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of is justice and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path. Per Latfur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh? Sher All vs State 46 DLR (AD) 67. Sections 439 & 439A—A second revision does not lie under section 439 of the Code against the judgment and order of the Sessions Judge passed under section 439A of the Code as the same has been made an absolute bar under sub-section (4) of section 439 of the Code. Mariam Begum vs State 53 DLR 226. Sections 439A & 561A—lnherent jurisdiction whether available to one losing in revision— The inherent jurisdiction of the High Court Division will be available even to a party who has lost in revision before the Sessions Judge. But it must be clearly borne in mind that the powers under section 561A being extraordinary in nature, should be exercised sparingly and where such exercise is essential and justified by the tests specially laid down in the provision itself. Aminul Islam vs Mujibur Rahman 45 DLR (AD) 9. Sections 439A & 561A—Sessions Judge acted illegally and without jurisdiction in quashing the proceeding of the case pending in the Court of Sadar Upazila Magistrate in exercise of his power under section 439A of the Code of Criminal Procedure because the power of quashing a proceeding is available only under section 561A CrPC. Zahurullah vs Nurul Islam 48 DLR 386. Sections 439A & 561A—Revisional jurisdiction of the High Court Division—Revision in a case arising out of section 145 CrPC. A party who has been unsuccessful in revision under section 439A CrPC is not totally debarred from invoking the jurisdiction of the High Court Division under section 561A. The opening words of this latter section—”Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division” repels any contention of such debarment. Aminul Islam vs Mujibur Rahman 44 DLR (AD) 56. Section 440—Under section 440 of the Code a party or his Advocate has no right to be heard by a court exercising revisional power and it is the discretion of the court to hear such a party or his advocate. If an Advocate fails to appear at the time of hearing of a criminal revision for whatever reason, this court cannot allow him to be heard by reopening the matter setting aside a judgment already pronounced and signed. Serajul Islam vs Faziul Hoque 47 DLR 480. Section 465—When in a trial before the Court of Sessions it is made to appear to the Court that the accused facing the trial is of unsound mind and consequently incapable of making his defence, the court is required to enquire into the question of insanity, if necessary by taking evidence, to satisfy itself whether he is fit to make his defence. State vs Abdus Samad @ Samad Ali 54 DLR 590. Section 465-The provisions of the section are mandatory and failure of the Court in this regard rendered the entire subsequent proceedings illegal and is of no legal effect which would vitiate the conviction and sentence. Wally Ahmed alias Babi vs State 58 DLR 433. Sections 467 and 471—Complaint not having been made by a competent court, the criminal proceeding under sections 467 and 471 of the Penal Code has to be quashed. Sona Mia vs State 42 DLR 8. Section 471(1)—When the accused comes within the definition of a ‘criminal lunatic’ he is liable to be detained in any asylum. Nikhil Chandra Halder vs State 54 DLR 148. Section 476—Rule issued by the High Court Division on the appellants and two advocates to show cause why complaint should not be lodged against them under section 476 CrPC was m1e absolute against the appellants who then appealed. High Court Division issued a suo motu Rule in Criminal Revision No. 43 of 1986, upon the appellants and two Advocates to show cause as to why a complaint should not be lodged against them under section 476 of the Code of Criminal Procedure as they appeared to have practised fraud upon the Court by filing a false petition of compromise. The Rule against the appellants was made absolute, but it was discharged against the two Advocates. Hence this appeal. Abdul Gafur vs State 41 DLR (AD) 127. Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah (Md) vs State 50 DLR 629. Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah vs State 50 DLR 629. Section 476-The Court has enough power to lodge complaint without holding any enquiry when from the proved facts he is prima fade satisfied that an offence has been committed before him in a proceeding or in relation thereto even without hearing the party complained against. Naogaon Rice Mills Ltd vs Pubali Bank Ltd 56 DLR 543. Section 476—It appears that under the provision of section 476 of the Code of Criminal Procedure any court is empowered to send for appropriate steps against a person who is alleged to have created a forged document and submitted the same in a proceeding as an evidence in order to obtain a legal benefit out of the said forged document. But before embarking upon the provision of section 476 of the Code of Criminal Procedure it is the precondition of the provision that the proceeding in which the forged document has been filed must have been ended and any application under section 476, Code of Criminal Procedure filed by any party before that court cannot be considered unless the proceeding in which the said forged document has been filed has ended. Noor Alam Hossain vs State 59 DLR 322. Section 476—The provision laid down in section 476 of the Code does not make the preliminary inquiry an obligatory one, rather it is left to the court making it discretionary which should be judicially exercised. Abu Yousuf vs State 62 DLR 421. Suomotu Rule A suomotu Rule was issued by the High Court Division under section 476 of the Code upon delinquent Abdul Majid to show cause as to why an inquiry should not be made to ascertain as to whether he gave false evidence as PW 2 before a Bar Council Tribunal in a complaint case and thereby committed an of- fence punishable under section 193 of the Penal Code. Abdul Hamid Advocate Vs. Bangladesh Bar Council and others, 17BLD(HCD) 547 Sections 480 and 482—The Tribunal shall have the same powers as vested in a Civil Court for the purpose of inquiry and every enquiry as such shall be-deemed to be judicial proceeding within the meaning of sections 193 and 228 of the Penal Code—A Tribunal shall be deemed to be a Civil Court for the purposes of sections 480 and 482 CrPC. Muhammad Raushan Ali vs Bangladesh Bar Council 42 DLR 201. Section 480 Section 480 of the Code of Criminal Procedure provides the procedure. This section reads as under: - When any such offence as is described in section 175, section 178, section 179, section 180 or section 228 or the Penal Code is committed in the view of presence of any Civil, Criminal Or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred taka, and in default of payment. to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. Bangladesh -VS- Naznin Begum (Most.), [3 LM (AD) 66] Section 488—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate. It can safely be presumed that our law makers while promulgating Ordinance No. XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18. Section 488—Family Courts can entertain, try and dispose of any suit relating to or arising out of maintenance but as section 488 CrPC does not empower the Magistrate to entertain, try and dispose of any suit i.e. any matter of civil nature, power of Magistrate under section 488 CrPC has not been ousted consequent to the establishment of the Family Courts, Rezaul Karim vs Rashida Begum 48 DLR 416. Section 488—Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR175. Section 488—Order of maintenance of wife and son—the purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a family court matter. Md Abdul Khaleque vs Selina Begum 42 DLR 450. Section 491—High Court may pass an order under section 491 CrPC at any time. The phrases “illegally” or “improperly” used in the sub-section (b) of section 491 of the Code mean that when a person is not detained within the provisions of any law, the detention becomes an illegal detention. The scope of section 491 CrPC is wider than the scope of constitutional provision. (Article 102 of the Constitution). Syeda Rezia Begum vs Bangladesh 40 DLR 210. Habeas Corpus The Supreme Court being the guardian of the Constitution and protector of the liberty of the citizens, Sub-section (3) of section 491 Cr.P.C. does not debar the High Court Divi- sion from examining the case of a detenu to satisfy itself if the detenu is illegally and un- lawfully detained or that he is being detained without any lawful authority for non-compliance of any mandatory provision of law or for colourable exercise of powers and to declare his detention illegal if materials on record do not justify it. Mallick Tarikul Islam Vs. The Secretary, Ministry of Home Affairs and others, 14BLD (HCD)156) Ref: I B.SC.D. 119; 38 DLR 93; 28 DLR 259:27 DLR(SC) 41-Cited Habeas Corpus Custody of a victim of abduction In deciding the custody of a victim girl in an application under section 491 Cr.P.C. if the High Court Division finds that the victim is major about 18 years old, there remains nothing for the trial court to decide the question of age of the victim. In such a case the High Court Division should make it expressly clear that its finding on the age of the victim was only tentative in nature and it was only for the purpose of deciding the custody of the victim girl and the trial court was free to take its own decision on the question on the basis of evidence before him-Code of Criminal Procedure, 1898 (V of 1898) Section. 491 Khairunnessa Vs. Illy Begum and an- other, 16BLD (AD) 124 Section 491—And Constitution of Bangladesh (as amended upto date) Article 102—Court’s duty to hear the matter and pronounce its decision at the earliest without waiting for Advisory Board’s report regarding the legality or otherwise of the detenu’s detention beyond the scope of the Special Powers Act. In view of the clear provisions of section 491 CrPC (as well as under Article 102 of the Constitution) it is the duty of this Court to hear the matter giving opportunity to both the parties to make their written and oral submissions and pronounce its decision as early as possible without waiting for the Advisory Board to report its opinion to the Government regarding the question whether the detenu is being illegally detained beyond the scope of the Special Powers Act, 1974. Dr Md Habibullah vs Secretary, Ministry of Home Affairs 41 DLR 160. Section 491—Production of victim girl before the Upazila Court for determination of age and also in the matter of her custody. In the matter of guardianship and custody of the person of a minor the court may put the minor in the custody of an appropriate person for the minor’s welfare or may keep the minor in neutral custody. Sukhendra Chandra Das vs Secretary Ministry of Home Affairs 42 DLR 79. Section 491—Habeas Corpus—Extension of detention after expiry of initial period of detention —Order dated 22-5-1989 by the Ministry of Home Affairs was made after the expiry of 30 days from the date of first order of detention by the Additional District Magistrate. The Government have not been authorised to extend the period of detention with retrospective effect. The detenu is therefore detained under an illegal order of detention and is directed to be released forthwith. Momtaz Sultana vs Secretary Ministry of Home Affairs 42 DLR 457. Section 491—Determination of age of a person in custody for the purpose of her guardianship—Isolated statement of her father in such a case in respect of her age cannot be accepted as true unless it is supported by “corroborative evidence. If a girl is found below 16 and taken away without the consent of the guardian then it will be an offence and the guardian will be entitled to her custody. Even if it is presumed that at time of occurrence of her kidnapping the detenu was minor but now when she is found major the Court has no jurisdiction to, compel her to go with her father. Manindra Kumar Malakar vs Ministry of Home Affairs 43 DLR 71. Section 491—Directions of the nature of a Habeas Corpus, scope of—The argument that the scope of section 491 CrPC is narrower than that of Article 102 of the Constitution has no force. Its scope is not hedged by constitutional limitation. In constitutional provision it is to be seen whether the detenu is being held without any lawful authority and in a matter under section 491 it is only required to be seen whether the detention order is illegal and/or improper. Pearu Md Ferdous Alam Khan for Serajul Alam Khan (Detenu) vs State 44 DLR 603. Section 491—The High Court Division can exercise its jurisdiction not only in declaring the detention of the detenu illegal but also declaring the proceedings upon which the detenu was held in detention to be illegal and void. State vs Deputy Commissioner Satkhira. 45 DLR 643. Section 491—Judicial custody—Dispute over custody of alleged victim girl—Why father is refused to have her custody—A girl has been kept now in judicial custody though she is neither an accused or a witness in the relevant case. The custody or detention of a victim girl is different from that of a criminal or a political detenu. Judicial custody has the complexion of the custody of a guardian. This custody is necessary for giving the girl a chance to make up her mind and develop her independent opinion free from external influence. The facts and circumstances of each case will determine as to how and when the inherent discretion of the court for judicial is to be exercised. Dr Kazi Mozammel Haque vs State 45 DLR 197. Section 491—The girl’s age at the time of occurrence may be relevant for the alleged offence committed but for the purpose of custody the girl’s present age is more pertinent. Nurunnahar Khatun vs State 46 DLR 112. Section 491— When there has been a judgment and conviction passed by a Court, the High Court cannot interfere under section 491 on the ground of discovery of irregularities. Section 491 of the Code of Criminal Procedure could come into play only when there was an illegal detention by an Executive Order by private individuals or even by a Court if the Court had no jurisdiction to try the case. A court having jurisdiction to try a case has a jurisdiction also to arrive at its own conclusion however wrong. Bakul Miah vs Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka 46 DLR 530. Section 491—Judicial custody of victim girl —As soon as the girl attains the age of 18 years from 1-12-1978 she must be released from thea judicial custody on her own bond even if the criminal case in which she is kept in custody remains pending. Hasina Begum vs State 48 DLR 300. Section 491—When it is found fro4 materials on record that the alleged victim girl is aged above 16 and not an accused in the case, the order of her judicial custody is set aside and the Deputy Commissioner is directed to set her at liberty. Tarapada Sarker vs State 49 DLR 360. Section 491—In the appeal against the order of bail the matter of custody of the victim girl was not to be decided. The Court should have considered the Miscellaneous Case filed by the appellant under section 491 CrPC on merit. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238. Section 491—The Judges were not sitting in appeal or revision as would entitle them to proceed with the matter even in the absence of the parties. The only course open was to dismiss the Miscellaneous Case for default of the petitioner. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238. Section 491—Having considered all aspects of the matter it will be in the best interest of the girl if she is released from custody and given to the care of her father. it is also necessary to see that the accused does not feel prejudiced at the trial because of the girl remaining under the care of the informant. The accused will be at liberty to pray before the trial Court for her production in Court if it is found necessary. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238. Section 491—Primary evidence being there that the girl is minor and that she is the victim of an offence it is right and proper that the girl should stay with her parents rather than be given to the family of the accused. The girl cannot be allowed to make her own choice because, prima facie, it appears that she is a minor. Jharna Rani Saha vs Khondaker Zayedul Hoque alias Jahangir 52 DLR (AD) 66. Section 491—When a person was put into judicial custody by an order of a competent court of law unless that order is set aside detention cannot be considered as illegal. Tarun Karmaker vs State 53 DLR 135. Section 491—In view of the provisions of section 491(1)(b) the present application under section 491 is not maintainable as the detenu was put into custody by an order of the Sessions Judge and as the same order is still in force. Tarun Karmaker vs State and ors 53 DLR 135. Section 491—There are five clauses under sub-section(1) and there are 3 sub-sections in this section but none empower the Court to determine the question of custody of any minor. Tarun Karmaker vs State 53 DLR 135. Section 491—When there is only an ad interim bail and that too for a limited period this Court is not inclined to interfere in the matter. Bangladesh vs Md Naziur Rahman 54 DLR (AD) 157. Section 491—An order of detention passed on fictitious vague and indefinite grounds and founded on colourable satisfaction affecting the right of a citizen, and not in the larger interest of the society and public at large, must be quashed. Aftab Hossain (Md) vs Bangladesh 54 DLR 266. Section 491—The detenu Rahat having been detained to abstain himself from perpetrating torture/repression in the locality of Kamrangirchar under Nadim Group terrorists, of the detention order is well-grounded in the fact and circumstances of the case. Abul Member and Abul Hassain vs Secretary, Ministry of Home Affairs 54 DLR 392. Section 491—An application under this section cannot be rejected on the ground that no statement has been made as to the locus standi of the petitioner to challenge the order of detention or as to how the petitioner is aggrieved by the order of detention, if full particulars of the detenu and the detention are there. Zilaluddin (Md) vs Secretary, Ministry of Home Affairs 54 DLR 625. Section 491—An application under section 491 of the Code of Criminal Procedure is maintainable for custody of a minor to see that the minor is not held illegally and in an improper manner. Abdul Majid Sarker vs State 55 DLR (AD) 1. Section 491—A preventive detention is the deprivation of the liberty of a citizen, which right should not be taken away in an arbitrary manner. So this Court enjoys power to review the actions of the detaining authority under Articles 102(2)(b)(i) of the Constitution and under section 491 of the Code. Anwar Hossain vs State 55 DLR 643. Section 491—The right to obtain a direction under section 491 of the Code in the nature of a habeas corpus is a statutory right on the grounds recognised in the section and a part of the statutory right has become a part of the fundamental right guaranteed in Part III of the Constitution. Anwar Hossain vs State 55 DLR 643. Section 491—Whenever any authority is invested with a legal authority to make an order of detention to the prejudice of another person, such authority has the concomitant duty of acting judicially in making such an order on the basis of decision of consideration of some materials by observing the rule of natural justice. Anwar Hossain vs State 55 DLR 643. Section 491—Detenu Nazma Akhter now aged 20 having been detained in the safe custody of “Nirapad Abason” since against her will prayer for her release from safe custody is allowed., her detention being improper and illegal. Jatio Mahila Ainjibi Samity vs Bangladesh 59 DLR 447. Section 491-By now it well settled proposition of law that even the High Court Division can suo motu interfere when it comes to its knowledge that liberty of a citizen had been taken away by the unlawful ground. In such matter court should avoid technicality. When the State does not raise any objection in such circumstances this court can certainly interfere, when the liberty of a citizen is cutaned and his valuable right of freedom is taken away by the order of the sub- ordinate court. The High Court Division is empowered under 491 of the Code to set at liberty of the victim who is found to be detained illegally or improperly. Habib Khan vs State, 64 DLR 462 S. 491–The High Court Division is empowered under 491 of the Code to set at liberty of the victim who is found to be detained illegally or improperly. Habib Khan Vs. The State, 33 BLD (2013)-HCD-242. S. 491-Power to issue directions of the nature of a habeas corpus The High Court Division can suo moto interfere when it comes to its knowledge that liberty of a citizen had been taken away by the unlawful ground In the instant case, Rule was issued calling upon opposite parties to show cause as to why victim Most. Rokeya Dil Afroz Munmun is not being held in judicial Custody illegally and improperly and as to why the order passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal Case No. 578 of 2010 should not be set aside and directed to opposite parties to set the victim at liberty. In view of the facts and circumstances of the case, High Court Division held that material evidence on record shows the victim Most. Rokeya Dil Afroz Munmun is aged above 16 years and she is sui-juris and therefore is to be set at free allowing her to live with any one according to her will and choice. Habib Khan Vs. The State, 18 MLR (2013)-HCD-19 Section 491(3)—If after examining the material on the basis of which executive authority detained a person under the provisions of any law this court finds that there is no justification for detention, sub-section (3) of section 491 of the Code will not stand as a bar to declare the detention of the detenu as illegal. Pranajit Barua vs State 50 DLR 399. Section 492—The terms of appointment of the writ petitioner was solely based on confidence and satisfaction of the Government as to service he was rendering. The moment there is absence of confidence and satisfaction, it was within the domain of the Government to terminate the appointment. Secretary, Ministry of Law, Justice & Parliamentary Affairs vs Md Borhan Uddin 56 DLR (AD) 131. Section 492—When Government feels necessity of terminating appointment of a Public Prosecutor, questioning legality of termination of such appointment by a person claiming to be the informant of or the witness in the case can hardly; be considered legally well conceived. SM Jillur Rahman vs Bangladesh 56 DLR (AD) 127. Sections 492 and 493—Interpretation of Statute—Public Prosecutor occupies a solemn and unique position in the Code of Criminal Procedure. Dr SM Abu Taher vs State 42 DLR 138. Sections 492 and 493—Appointment of Public Prosecutor and authority of the PubIic. Prosecutor to conduct a case before any Court without written authority of the Government. Dr SM Abu Taher vs State 42 DLR 138. Section 493—Public Prosecutor has authority to file an application for revival of a case, proceeding of which were stopped for failure to conclude trial within the time limit. Taheruddin vs State 47 DLR 255. Section 493—When imputation is made directly or indirectly for removal of a public prosecutor natural justice requires that he must be given an opportunity to explain. Borhan Uddin (Md), Advocate vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 52 DLR 81. S. 493 and ACC Act sections 17, 18, 19, 20, 28 and 33: Relationship: This provision (of section 493) relates to the offences of the Penal Code triable by the criminal courts constituted under section 6 of the Code of Criminal Procedure, which is a general law, inasmuch as, the Commission under the Ain of 2004 has been given exclusive power to conduct cases instituted the under the Ain. This is evident from section 17, 18, 19 20, 28 and 33 of Ain, 2004 and section 10(2) of the Act of 1958...(Para-6). ACC Vs. Monjur Morshed Khan and Another, 1 Counsel (2013)-AD-33. Section 493-The High Court Division failed to notice that provision for instructing the public prosecutor by a private lawyer contained in section 493 is not applicable to cases instituted under the Ain of 2004 in view of the fact that the Ain of 2004 is a special law providing provi- sions for investigation, inquiry, filing of cases and conducting them. Anti-Corrup- tion Commission vs Monjur Morshed Khan, 64 DLR (AD) 124 Section 494-Provision of section 494 of the Code has not been followed by the court and there was no consideration and examination of the materials on which the Government decides withdrawal of the case. Such order of withdrawal cannot be supported and maintained. Abul Quashem (Md) vs State, 65 DLR 433 Section 494—Withdrawal from prosecution of any person (before charge is framed or after charge is framed) before pronouncement of the judgment—effect of—Words “consent of the Court” occurring in section 494 CrPC—Interpretation of—Court is to see whether the public prosecutor who has a duty under section 494 CrPC to file an application for withdrawal from prosecution has in fact placed cogent and relevant materials for consideration of a court of law—The Court granting “consent” must not accord its consent as a matter of course but must apply its mind to the ground taken in the application for withdrawal by the Public Prosecutor. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259. Section 494—Consent being one of a Court of law, the Court must consider the ground for its satisfaction for according consent and also for the higher Court to examine the propriety and legality of the order. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259. Section 494—Trial Court’s passing of the impugned order of withdrawal as a matter of course without any application ofjudicial mind to any material on record. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259. Section 494—The terms “consent” is a legal term and is of wider import which means “acquiesce in” or “agree to”. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259. Section 494–In a case of revival under section 339D, the Court is not to determine anything judicially—Court not to search for Government instruction which prompted the Public Prosecutor to file application for revival. Dr SM Abu Taher vs State 42 DLR 138. Section 494-The learned Assistant Sessions Judge having not granted the consent for withdrawal by the impugned order on consideration of any cogent ground or materials the same is not only illegal but contrary to the well established principles of criminal justice and liable to be quashed. Shamsul Alam vs State 47 DLR 476. Section 494-The Magistrate accorded permission for withdrawal simply on the ground that the Government had instructed the Deputy Commissioner concerned for taking steps for withdrawal of the case. Such mechanical order of withdrawal is contrary to the provision of section 494 of the Code. The Magistrate is directed to proceed with the case in accordance with law. Altaf Hossain vs Kobed Ali 49 DLR 589. Section 494-The trial Court having not accorded sanction for withdrawal of the case it cannot be said that the petitioners have acquired a vested right. Further, section 494 of the Code gives the authority only to a public prosecutor to file an application for withdrawal and, as such, the accused have no right to file an application for withdrawal. Apart from this the Tribunal after recording proper reasons have refused to accord consent for withdrawal of the case and, as such, no lawful grievance can be made on the merit as well. Abdul Khaleque vs Md Hanf 49 DLR (AD) 134. Section 494—The offence under section 376 is not-compoundable and, as such, there is no question of withdrawal. Sorbesh Ali vs Jarina Begum 49 DLR (AD) 143. Section 494—Withdrawal from the prosecution is subject to consent by the trial Judge and when the accused persons are still absconding the discretion ought not to have been exercised. Sreemall Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8. Section 494-The consent mentioned in section 494 of the Code is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. Sreemati Prativa Rani Dey (tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8. Section 494-The court is required to exercise judicially the function of according consent for withdrawal of any accused from prosecution—The consent should not be given mechanically. Loskor Md Mostan Billah vs State 56 DLR 199. Section 494-Withdrawal from prosecution —The judgment and order of the Tribunal Judge refusing to give consent to withdraw of the accused from prosecution cannot be found fault with nor there is any error in the judgment of the High Court Division. State vs Md Amir Hamza 57 DLR (AD) 26. Section 494-Though section 494 confers on the Public Prosecutor a wide power to withdraw from the prosecution, and the Court has j to exercise its power in relation to the facts and circumstances of the case in furtherance of cause of justice rather than as a hindrance to the object of the law. Moezuddin (Md) vs State 59 DLR 222. Section 494-The Additional Sessions Judge consented to the withdrawal from the prosecution of the accused opposite party No. 1 merely on the ground that the Ministry of Home Affairs decided to withdraw from the prosecution. The order cannot be said to be a legal one and the samei s liable to be interfered with. Moezuddin vs State 59 DLR 222. Section 494-Judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. The very word “consent” occurring in section 494 of the Code clearly indicates that it is not to be considered lightly on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application is based. Shamsun Nahar vs State 60 DLR 1. Sections 494 & 439—Consent mention in section 494 of the Code is not to be given mechanically. The court is to exercise its function judicially before giving such consent which implies that the court will have to examine the materials on which the Government decides on withdrawal of a case. ‘Consent’, as used in the section, means a consent freely given by a Court. Since the act of giving consent by the Court is a judicial act, the court is entitled to ask the Public Prosecutor the reasons for his withdrawal in order to judicially come to a decision. Badar Biswas vs State 57 DLR 770. S. 494-Provision of section 494 of the Code has not been followed by the court and there was no consideration and examination of the materials on which the Government decides withdrawal of the case. Abul Quashem (Md.) Vs. State, 65 DLR (2013)-HCD-433. Section 497(1) proviso read with section 173-A bail should not be withheld is a measure of punishment. On consi- deration of the age of the appellant and the health condition as available with the record, we are of the view that the appellant should get the privilege of bail as per proviso to sub section (1) of section 497 of the Code. Shafik Rahman vs State, 68 DLR (AD) 372 S. 497-The law permits the Court to enlarge any child alleged to have committed a non-bailable offence on bail. Children Act, 1974 Section 49(2)-If the Court does not grant bail, then the child shall be ordered to be detained in a remand home or place of safety. A report published in the Daily Star on 29.09.2010 was brought to the notice of Court and a Suo Muto was issued directing the Secretary, Ministry of Home Affairs and the Inspector General of Prison to report to this Court within two weeks specifying were the 145 children were being held and by order of what authority they were being so held. In this Rule High Court Division reiterate that the learned Judges must be aware that children cannot under any circumstances be kept in prison pending trial. The children held in the prisons, whose age is below 16 years, are being held there illegality and without lawful authority and are to be removed from prison forthwith. State Vs. The Secretary, Ministry of Homes Affairs, Bangladesh Secretariat, Dhaka & Others, 18 MLR (2013)-HCD-65. Section 497— Bail—This section enjoins upon the Court to exercise judicial discretion in the matter of granting bail for ascertaining whether the materials placed before the court by the prosecution are of such a tangible nature that if left unrebutted, they may lead to the inference of guilt of the accused. In the present case there is no other materials on record other than the FIR and mere allegations thereof. The court thus committed an error in refusing bail in this case. AKM Mosharraf Hossain vs State 44 DLR (AD) 246. Section 497—As soon as the accused appears or brought before the Court and prays for bail the Sessions Judge should dispose of his application. If the Sessions Judge fails to dispose of the same there is no scope for allowing the accused to continue on the bail granted by the Magistrate, he is to be sent to jail custody. We have noticed in many cases that such orders allowing the accused to continue as before were written by the bench clerks and merely intialled by the Sessions Judges and allowing the accused to remain at large for long time delaying commencement of the trials. The sooner these practices of issuing notices and/or allowing the accused to continue as before are discontinued it is better for speedy trial of the Sessions cases. Sessions Judges should stop the practice of putting initials on such important orders written by the bench clerks. Sohail Thakur vs State 51 DLR 199. Section 497—Additional Sessions Judge is not bound by the bail granted by the Sessions Judge. If he refuses bail to an accused who was earlier granted bail by the Sessions Judge that cannot be construed as cancellation of bail granted by the Sessions Judge. Sohail Thakur vs State 51 DLR 199. Section 497—”Save in accordance with law” as mentioned in Article 32 not only refers to criminal law but also civil law which provides for arrest and detention, namely, for recovery of decretal dues and public dues. State vs Faisal Alam Ansari 53 DLR (AD) 43. Section 497—Section 497 of the Code of Criminal Procedure is a procedural law and the accused having alleged to have committed a substantive offence of murder his liberty is curtailed. State vs Faisal Alam Ansari 53 DLR (AD) 43. Sections 497 & 498—Vires of the law has not been challenged in this case and therefore, we are not called upon to decide the Constitutionality of the law. Every law has a presumption of its Constitutionality. State vs Moyezuddin Sikder 60 DLR (AD) 82. Sections 497 and 498—Bail—A person is not automatically debarred from getting bail merely because his name was mentioned in the charge-sheet. Liaqat Sharif vs State 40 DLR 506. Section 497(1), r/w section 173 Bail- A bail should not be withheld as a measure of punishment. On consideration of the age of the appellant and the health condition as available with the record, we are of the view that the appellant should get the privilege of bail as per proviso to sub section (1) of section 497 of the Code of Criminal Procedure. We have given our anxious consideration to the facts and circumstances of the case. Since the case is under investigation, we are not inclined to make any observation touching on the merit of the case...... Shafik Rahman -VS- State, [1 LM (AD) 490] Section 498 In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail The petitioner has been charged with for offences punishable under sections 161/165(A) of the Penal Code which are bailable offences. In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code of Criminal Procedure does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. But it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. The judgment of the High Court Division is set-aside. Be enlarged on bail to the satisfaction of the Special Judge, Court No. 3. Dhaka pending trial of the case. Mia Nuruddin (Apu) VS State & another, [1 LM (AD) 474] Section 498 Ad interim bail- Interfering with the administration of justice by the doctor's false reports- These reports the trial of a sensational murder case is being delayed and thereby, they have been interfering with the administration of justice. By sending him to Ibrahim Cardiac Hospital instead of sending him to BSMMU, the doctors of the Central Jail. Hospital, who are public servants have misused their power and position for which, exemplary actions should be taken against them....... State =VS= Mahtab Uddin Ahmed Chowdhury, [1 LM (AD) 476] Section 498- The ad interim bail granted to the accused respondent is cancelled. The Central Jail Authority is directed to send the accused Mahtab uddin Ahmed Chowdhury (Minar) to Feni District jail for facing trial in the case. This petition is disposed of with the above observations and direction......State =VS= Mahtab Uddin Ahmed Chowdhury. [1 LM (AD) 477] Section 498- Ad-interim anticipatory bail Section 498 of the Code of Criminal Procedure for anticipatory bail before the High Court Division. After hearing the parties by the impugned order dated 22.04.2014 the High Court Division granted ad-interim anticipatory bail to the accused respondents. The Chief Judicial Magistrate, Sylhet is directed to secure appearance of the accused-respondents, namely (1) Ali Amzad, son of Abdul Mannan @ Monoi Miah of village Shirajpara, (2) Md. Nazim Uddin, son of late Ibrahim Ali of village Rarai, (3) Abdul Mannan and (4) Moinul Islam, both sons of late Junab Ali of No. 6 Sultanpur Union, all of Police Station-Jokigonj, District-Sylhet in connection with Criminal petition for leave to appeal No. 273 of 2014 filed against the order dated 22.4.2014 passed by the High Court Division in Criminal Miscellaneous Case No. 18030 of 2014 corresponding to G.R. No. 40 of 2014 arising out of Jokigonj Police Station Case No. 07 dated 10.03.2014 in the Court of Chief Judicial Magistrate, Sylhet immediately and enlarge them on bail to his own satisfaction......DC, Sylhet =VS= Md. Shahjahan, [3 LM (AD) 547] Section 498-Bail-On consideration of the F.I.R.. 161 statements of the witnesses and also 164 statement of a co- accused, found that the FIR story that this accused-respondent Faridul Alam murdered the deceased has not been supported by the confessional statement of the co-accused wherein it was stated that another accused Raza Mia killed the deceased-granted bail to this accused- respondent. This accused-respondent has already been released from the jail custody and is on bail since few days after passing of the impugned judgment and order. The State VS Faridul Alam, [4 LM (AD) 522] Section 498- Bail matter- There is no doubt that the power to grant bail under section 498 of the Code is given both to the High Court Division as well as the Court of Sessions. The decision reported in 10 DLR cited above has been brought to our notice, where it was held that a revision application direct to the High Court Division is not ordinarily entertainable. A different view appears in the case reported in 24 BLD. However, in the instant case, this issue of the maintainability has not been finally adjudicated by the High Court Division. Facts and circumstances, we are of the view that the ends of justice would be best served if the High Court Division is directed to adjudicate upon the issue of maintainability while disposing of the Rule issued in respect of the bail of the accused-respondent. The order of stay granted by the learned Judge-in-Chamber shall continue till disposal of the Rule.... State VS Begum Khaleda Zia, [6 LM (AD) 88J Section 498- Grant or refusal of anticipatory bail- The Code of Criminal Procedure, 1898, at its initiation had no specific provision of anticipatory bail. In 1978, by the Law Reforms Ordinance provision was incorporated for direction to grant of bail to person apprehending arrest, by inserting Section 497A in the Code of Criminal Procedure. Provision was omitted from the Code by the Code of Criminal Procedure (Amendment) Ordinance, 1982 (Ordinance No.IX of 1982). Relevant provision of the said Ordinance runs as follows:- "2. Omission of section 497A, Act, V of 1978; In the Code of Criminal Procedure, 1898 (Act V of 1898), herein referred to as the said Code section 497A shall be omitted." The case of the State Vs. Md. Monirul Islam @ Nirob and others reported in 16 BLC (AD) page 53. (judgment was delivered by A.B.M. Khairul Haque, C.J.) In that case it was observed, "We have gone through the Order dated 08.06.2010 passed by the learned Judges of the High Court Division. The Order granting the ad interim anticipatory bail is absolutely mechanical and does not give any reason for giving such an exceptional relief. This kind of blanket order allowing anticipatory bail should not be passed. True it is, that it is an ad interim bail but it is still a bail. As such, the learned judges ought to be satisfied before allowing anticipatory bail, ad interim or otherwise as under: i) The allegation is vague, ii) No material is on record to substantiate the allegations, iii) There is no reasonable apprehension that the witnesses may be tampered with, iv) The apprehension of the applicant that he will be unnecessarily harassed, appears to be justified before the Court, on the materials on record, v) Must satisfy the criteria for granting bail under section 497 of the Code, vi) The allegations are made for collateral purpose but not for securing justice for the victim. vii) There is a compelling circumstance for granting such bail, the case of Durnity Daman Commission and another Vs. Dr. Khandaker Mosharraf Hossain and another reported in 66DLR(AD) 92 (judgment was delivered by A.H.M. Shamsuddin Choudhury.J) has observed as under: "A metaphorical avowal that the Magistracy/lower judiciary is controlled by the executive should not be treated as specific because Magistrates/lower court/tribunal Judges do no longer dwel in the realm governed by the executive. If allegation of bias is aired against a particular or a group of Magistrates/Judges, cause of suspicion must be specifically spelt out. The Judges concerned, shall give reasons for their satisfaction on this unraveling point (b) Political threshold of the petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application. (c) Non-bailability of the offence cited in the FIR cannot be a reason for the High Court Division's intervention for even the Magistrates/lower court/tribunal Judges are competent enough to enlarge on bail a person accused of non-bailable offences in deserving cases. (d) Effect of the accused's freedom on the investigation process must not be allowed to float on obfuscation. (f) The High Court Division must scrutinize the text in the FIR with expected diligence and shall ordinarily be indisposed to grant anticipatory bail where the allegations are of heinous nature, keeping in mind the ordains figured at paragraph 19 of the case reported in 51DLR(AD), 242. Claim that the allegations are cooked up shall also not be adjudged at that of point if the FIR or the complaint petition, as the case is, prima facie, discloses an offence. Whether the allegations are framed or genuine can only be determined through investigation and sifting of evidence. g) Interest of the victim in particular and the society at large must be taken into account in weighing respective rights. (h) If satisfied in all respect, the High Court Division shall dispose of the application instantaneously by enlarging the accused a limited bail, not normally exceeding four weeks. without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its own legal discretion without reference to the High Court Division's anticipatory bail order. Anticipatory bails shall not survive post charge-sheet stage." The case of State Vs. Mirza Abbas and others reported in 67 DLR (AD)182, this Division again observed, "Such discretion has to be exercised with due care and circumspection depending on circumstances justifying its exercise.No blanket order of bail should be passed. Such power of the High Court Division is not unguided or uncontrolled and should be exercised in exceptional case only. Court must apply its own mind to the question and decide whether a case has been made out for granting such relief. Court must not only view the rights of the accused but also the rights of the victims of the crime and the society at large while considering the prayers. An overgenerous infusion of constrains and conditions are not available in the guidelines indicated by this Division. The case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others reported in (2011) 1 SCC 694, Indian Supreme Court has observed that, "The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant of flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The Courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors. namely, no prejudice should be cause to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." Guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. No attempt should be made to provide right and inflexible guidelines in this respect because all circumstances and situations of future can not be clearly visualised for the grant or refusal of anticipatory bail. Few principles for grant of anticipatory bail can be summarised as follows: (i) The F.I.R. lodged against the accused needs to be thoroughly and carefully examined; (ii) The gravity of the allegation and the exact role of the accused must be properly comprehended; (iii) The danger of the accused absconding if anticipatory bail is granted; (iv) The character, behaviour, means, position and standing of the accused; (v) Whether accusation has been made only with the object of injuring or humiliating the applicant by arresting him. Because it is to be remembered that a worst agony, humiliation and disgrace is attached to arrest. Arrest leads to many consequences not only for the accused but for his entire family and at the same time for the entire community; (vi) A balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and thorough investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (vii) The anticipatory bail being an extra ordinary privilege, should be granted only in exceptional cases. Such extraordinary judicial discretion conferred upon the Higher Court has to be properly exercised after proper application of mind to decide whether it is a fit case for granting anticipatory bail not according to whim, caprice or fancy: (viii) A condition must be imposed that the applicant shall not make any inducement or threat to the witnesses for tampering the evidence of the occurrence; (ix) The apprehension that the accused is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency cannot be considered to be imaginary and the court ought to have considered that aspect seriously before granting anticipatory bail. (x) In the cases involve grave offence like murder, dacoity, robbery, rape etc. where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims the accused should never be enlarged on anticipatory bail. Such discretion should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. (xi) It is to be borne in mind about the legislative intention for the purpose of granting anticipatory bail because legislature has omitted the provision of Section 497A from the Code. (xii) It would be improper exercise of such extraordinary judicial discretion if an accused is enlarged on anticipatory for a indefinite period which may cause interruption on the way of holding thorough and smooth investigation of the offence committed. (xiii) The Court must be extremely cautious since such bail to some extent intrudes in the sphere of investigation of crime. (xiv) While enlarging an accused on anticipatory bail, the Court must direct the applicant to co-operate with the investigating officer in every steps of holding proper investigation if the same is needed. (xv) The anticipatory bail granted by the Court should ordinary be continued not more than 8(eight)weeks and shall not continue after submission of charge sheet, and the same must be in connection with non-bailable offence. (xvi) The Court granting anticipatory bail will be at liberty to cancel the bail if a case for cancellation of bail is otherwise made out by the State or complainant. The indicatives of this Division given in the case of State V. Abdul Wahab Shah Chowdhury that "such extraordinary remedy, and exception ion to the general law of bail should be granted only in extra- ordinary and exceptional circumstances upon a proper and intelligent exercise of discretion" should be followed strictly. ...The State -VS- Morshed Hasan Khan(Professor Dr.), [7 LM (AD) 292] Section 498- Without surrendering before the trial court The High Court Division issued Rule and granted ad interim bail It appears that the respondent was neither in custody nor appeared in person when his revisional application was moved. Clearly the High Court Division ought not to have considered his petition as he was undoubtedly a fugitive from justice. Hence, the question of issuing any Rule did not arise. We are of the view that the respondent was a fugitive from justice and still remains so in spite of the fact that this Division issued directions to secure his arrest, he remains still at large. Until his surrender, no court of law can give him any protection or entertain any application by him. This appeal is, allowed and the impugned Order of the High Court Division in Criminal Revision No. 227 of 2003 including the issuance of Rule, granting of ad interim bail and staying further proceedings of Metropolitan Special Case No. 2 of 2002 which arose out of Ramna Police Station Case No. 70 dated 27.03.2001 now pending in the Court of Metropolitan Sessions Judge and Special Judge, Dhaka is hereby, set aside. The Metropolitan Sessions Judge and Senior Special Judge, Dhaka is directed to proceed with the trial of the respondent Dr. Fazlur Rahman in accordance with law.... The State VS Dr. Fazlur Rahman, [9 LM (AD) 113) Section 498- Bail-Petitioner Begum Khaleda Zia was convicted under section 5(2) of the Prevention of Corruption Act, 1947 by the learned Special Judge, Court No.5, Dhaka in Special Case No.18 of 2017 arising out of Tejgaon Police Station Case No.15 dated 8-8-2011. The trial Court sentenced her to suffer rigorous imprisonment for a period of 7 (seven) years and to pay fine of Taka 10,00,000 (ten lac), in default, to suffer simple imprisonment for a further period of 6 (six) months more. Against the said judgment and order of conviction and sentence, she preferred aforesaid criminal appeal in the High Court Division and, thereafter, filed an application for bail in that appeal. The High Court Division, by impugned order, rejected the said prayer for bail holding that taking into account the gravity of the offence allegedly committed by a person no less than the ex-Prime Minister of the Country, the trial Court has inflicted the highest sentence available to the relevant law. That the petitioner prayed for bail in the High Court Division on the ground, inter alia, that she has been suffering from serious health complications but the High Court Division totally failed to consider the said ground though the same was specifically pointed out before the Court for consideration at the time of hearing the application for bail. Bangabandhu Sheikh Mujib Medical University is a dependable medical institution of the country for providing proper treatment for a patient. The Medical Board did not suggest that it is necessary to send the petitioner abroad or any other specialized hospital in Bangladesh for her better treatment. Nowhere in the Criminal Petition for leave to appeal it has been stated that the petitioner has expressed her desire or eagerness to take better treatment abroad stating that the treatment provided by the BSMMU authority is not adequate and dependable. We do not find lacking sincerity of the doctors of the BSMMU to provide adequate treatment for the petitioner. It is the obligation of the BSMMU authority to provide appropriate treatment for the petitioner. Considering the aforesaid facts and circumstances, the petition is dismissed with observation that if the petitioner gives necessary consent, the Board is directed to take steps for immediate advance treatment namely, biologic agent as per recommendation of the Board. ...Begum Khaleda Zia =VS= State, [9 LM (AD) 533] Section 498- Bail Modified judgment of the High Court Division granting bail Direct the Jailors, Dhaka Central Jail and Kashempur Central Jail to allow the accused -respondents to hold meeting of the companies if necessary and to execute any document or documents, resolutions, deeds etc. as may be necessary for the purpose of selling 35 lac matured trees owned by Destiny Tree Plantation Limited. We also direct the Jail Authorities to allow Dr Md Shamsul Huq Bhuiyan, MP Chandpur-4 Constituency to meet the accused in Jail as and when necessary for consultation and obtaining necessary Signatures and instructions from them for the purpose of selling the trees. We also direct the Jail Authority to allow all sort of co-operation as may be necessary for the purpose of completing the transaction for sale of the trees and receiving sale proceeds for onward transmission to the Chairman, Durnity Daman Commission for distribution to the affected persons on the basis of list to be submitted by Dr Md. Shamsul Huq Bhuiyan, MP. Durnity Daman Commission =VS= Mohammad Hossain, [3 LM (AD) 549] S. 498-Guideline for granting Anticipatory Bail-The Order granting anticipatory bail is absolutely mechanical and does not give any reason for giving such an exceptional relief. This kind of blanket order allowing anticipatory bail should not be passed. This being an ad interim order, Judges ought to be satisfied before allowing anticipatory bail; (i) the allegation is vague, (ii) no material is on record to substantiate the allegations, (iii) no reasonable apprehension that the witnesses may be tempered with, (iv) the apprehension of the applicant that he will be unnecessarily harassed, appears to be justified before the Court, on the materials on record, (v) must satisfy the criteria for granting bail under section 497 of the Code. (vi) The allegations are made for collateral purpose but not for securing justice for the victim, (vii) there is a compelling circumstance for granting such bail. DC, Bhola Vs. Md. Monirul Islam and other, 1 Counsel (2013)-AD-13. S. 498-Allegation under Table 9(Kha) of Section 19(1) of the Narcotics Control Act, 1990 In the instant case it appears that the petitioner was alleged to be arrested along with 600 pieces of Yaba Tablet on 8.1.2011 and till then detained into custody and by the time he is languishing in the jail custody for more than 10 months. As per certificate of analysis given by the Department of Narcotics Control Central Chemical Laboratory, dated 16.4.2012 each yaba tablet contents 5.1 mg narcotics (melt amphetamine) 600 pieces yaba Tablet contains less than 5 grams of narcotics for which law prescribed minimum sentence of six months imprisonment. Considering the tenure of custody we are inclined to enlarge him on bail. Tabarak Hossain Vs. The State, 21 BLT (2013)-HCD-101. S. 498-If the bail is granted to one co-accused, the other co-accused whose case stands on the same footing is entitled to get bail. Advocate Ruhul Kabir Rizvi Vs. State, 65 DLR (2013)-HCD-541. S. 498 of CrPC: Ad interim bail should not be granted for long period of time: It appears that the charge-sheet has not yet been submitted by the police and the accused-respondents are languishing in custody for more than 1 (one) years, as such, we do not find any justification for interference with the discretion exercised by the High Court Division in granting ad interim bail. However, the ad interim bail ought not to have been granted for an indefinite period...(Para-4). State Vs. Nazmul Hasan (Criminal), I Counsel (2013)-AD-48. Ss. 498 and 561A-After submission of the police report, there is no scope for anticipatory bail or pre-arrest bail. Ali Haider Chowdhury Vs. State, 65 DLR (2013)-HCD-116. S. 498-In dacoity cases when bail matters are taken up, apart from the question of law and order, emerging jurisprudence of victim's right immediately crosses the judicial mind. General considerations and principles of bail, therefore, do have no straight-jacket application in such cases, far less in matters of ad interim bail. Aslam @ Billal Vs. State, 18 BLC (2013)-HCD-30. S. 498-Undue delay in holding trial is a valid ground for granting bail and there is no material to discriminate the case of petitioner from the co-accused, who has been enlarged on bail by the Court below. Accordingly, the petitioner was enlarged on bail. Md. Shahidul Islam @ Shahidul Vs. The State, 2 LNJ (2013)-HCD-197. Section 498—Order for conditional bail is illegal and not proper. AHM Siddique vs State 45 DLR (AD) 8. It appears that the prosecution opposed prayer for bail and as such we are of the view that the High Court Division ought to have exercised the jurisdiction after being satisfied that there are reasonable grounds for believing that the accused respondent is not guilty of the offence. The State vs Muhibur Rahman Manik (Amirul Kabir Chowdhury J) (Criminal) 3ADC 498 Section 498—Considering the statements under section 161 of the Code of Criminal Procedure wherein no specific overt act involving the appellants with the killing of the victim is found the appellants are granted bail and if the trial starts the Sessions Judge will be free to take them into custody during trial. Abdul Matin vs State 44 DLR (AD) 8. Section 498— Bail—It is not the prima facie case against the accused but reasonable grounds’ for believing that he has been guilty which prohibits granting of bail. The onus is on the prosecution to disclose those reasonable grounds. Court has to examine the data available in the case to find out whether reasonable grounds exist to connect the accused with the crime alleged. Shaikh Shahidul Islam vs State 44 DLR (AD) 192. Section 498— Bail—Refusal of bail in a case of murder in which the accused was earlier exempted from trial—In view of Sessions Judge’s findings that non-submission of charge-sheet against the petitioner earlier was without valid reason, that he is a powerful man in the locality and there is a possibility of his influencing the witnesses has substance—there is no compelling reason to enlarge the petitioner on bail. ASM Abdur Rob vs State 44 DLR 205. Section 498—Sentence for one year—The Court ought to have exercised discretion in granting bail to the appellants in view of the short sentence of imprisonment. Saimuddin vs State 43 DLR (AD) 151. Section 498—Bail in a case where the sentence is of short duration—In the present case the – sentence is of two years and the disposal of the appeal in question normally takes time. In that circumstances the High Court Division ought to have exercised judicial discretion in the matter of granting bail to the appellants. The judicial discretion having not been properly exercised in the facts of the case the order is set aside and the appeal allowed. Dhanu Mia vs State 43 DLR (AD) 119. Section 498—High Court Division criminal revision cancelled the appellant’s when there was no new material before it and no allegation of tampering with the evidence. Co-accused against whom cognizance of a murder case has already been taken is already on bail. High Court Division did not exercise its judicial discretion properly in cancelling the appellant’s bail—Appellants to remain on bail already granted by Upazila Magistrate. Bakul Howlader vs State 43 DLR (AD) 14. Section 498— Bail—Incriminating facts disclosed in the FIR after due inquiry by the inspecting team are reasonable grounds for believing that the petitioner is guilty of criminal breach of trust. The Session Judge has rightly rejected the petition for bail. Mustafizur Rahman vs State 45 DLR 227. Section 498—Bail—When there is hardly any chance of abscondance of the appellant in the peculiar circumstances, the Court has found that he is entitled to bail—Appeal allowed. We need not consider the appellant’s contentions with regard to the order of conviction. In the peculiar circumstances of the case we think the appeallant is entitled to bail particularly where there is hardly any chance of abscondance. The respondent found it difficult to oppose the appellant’s prayer. SM Shajahan Ali Tara vs State 41 DLR (AD) 112. Section 498—Anticipatory bail- Circumstances when such bail was granted by the High Court Division. The police went to the residence of the petitioner to arrest him on the basis of a case started upon a newspaper report. He was a candidate for the National Assembly election. His political rivals and enemies were bent upon defeating him by putting him in confinement through the help of the police. In such circumstances, the prayer for anticipatory bail was granted. Zulfiqur Ali Bhutto vs State 43 DLR 312. Section 498-Bail—there was a free fight between the parties; the accused are in jail for 9 months, the case has not been sent to proper court for trial as yet and both sides have case against each other on the self-same matter—Hence it will not be unreasonable to enlarge the petitioners on bail till the trial starts when the trial Court will see whether they should continue on the same bail. Shahidullah vs State 42 DLR 394. Section 498-There is no evidentiary value of confessional statement of the co-accused if not corroborated by the evidence. Serious view is also taken for violation of the direction not to arrest or harass the petitioner by a Division Bench of this Court in Writ Petition No. 3073 of 2006 for two months but the petitioner has been arrested before expiry of that period. The opposite party must explain it. Considering the above facts, the petitioner is enlarged on bail. Badrud Doza vs State 58 DLR 529. Sections 498 and 517—An application for disposal of seized articles can be filed under section 517 of the Code before the proper Court after conclusion of trial. The High Court Division acted illegally and without jurisdiction in releasing the seized goods at the time of issuance of Rule in an application under section 498 of the Code. State vs Abdur Rahim 58 DLR (AD) 65. Section 498—Successive bail petition, propriety of—The Judges were not right in taking the view that once a petition for bail is rejected no further application can be made and the remedy lies only in an appeal. It is also not right to say than an application for bail could not be filed before the Vacation Judge and that he had no jurisdiction to grant interim bail (when he was himself a party to the rejection of bail for the same accused earlier by the Division Bench). At the most, it may be said that it was indiscreet on the part of the Vacation Judge to grant bail in the facts of the case. In the application for bail before the Vacation Bench, it was not mentioned that prayers for bail had been refused earlier. For this suppression of fact alone the ad interim bail could have been cancelled. MA Wahab vs State 42 DLR (AD) 223. Section 498—Bail matter—High Court Division admitted a criminal appeal but rejected the prayer for bail pending disposal of the appeal—Ad interim bail granted by tle Appellate Division at leave stage for two months cannot be allowed to continue indefinitely—ad-interim bail extended for six months more and meanwhile parties are directed to make sincere effoils for disposal of the appeals—on expiry of the extended period, prayer for bail is to be moved before the High Court Division. Azizul Hoq vs State 42 DLR (AD) 284. Section 498—The law permits granting of bail even in a case where there are such reasonable ground for refusing bail, in the case of any woman or any sick or infirm person. However, the respondent has not been granted bail upon these considerations but upon the view that there are no reasonable grounds for believing that she has been guilty of the offence alleged. The learned Attorney-General could not refer to any principle which has been allegedly violated by the High Court Division nor to any fact which has either been ignored or wrongly relied upon. State vs Jobaida Rashid 49 DLR (AD) 119. Section 498-An earlier application for bail having been rejected on merits discarding the ground taken therein similar application subsequently filed without any new ground cannot be considered. Subsequent application must contain the information clearly about the earlier application(s) together with prominent heading such as second application or other application and so on and further that such application must be filed before the Bench which had rejected the earlier prayer(s), if of course that Bench is not in the meantime dissolved. MA Malik vs State 48 DLR 18. Section 498—The accused-petitioner is enlarged on anticipatory bail as it appears that the informant’s father is an influential man having easy access to the local executive authorities and in the facts of the case the apprehension of harassment cannot be ruled out. MA Malik vs State 48 DLR 18. Section 498—Anticipatory bail—As the petitioner is not named in the FIR and the police were after him, they are directed not to arrest him, and if arrested, he should be enlarged on bail immediately. He is directed to surrender then to the Magistrate and pray for regular bail. Abdul Wadud vs State 48 DLR 599. Section 498—Bail in pending trial—The Magistrate ordered for further investigation and the investigation is still pending. It is not certain j when the police will submit report after further investigation and when the case may be sent for trial. Considering the facts and circumstances the petitioner may be enlarged on bail. Shahed Reza Shamim vs State 49 DLR 116. Section 498-Restrictive order imposed by the District Magistrate upon liberty of movement of the petitioner enlarged by the High Court Division on anticipatory bail is stayed and the Magistrate’s conduct is deprecated. Ahad Miah vs State 49 DLR 200. Section 498-The petitioner, being a lady in custody for a considerable period of time and there being absence of materials that her husband holding illegal fire-arms in their residence, has absconded, she is enlarged on bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 189. Section 498-Mere naming the accused in the charge-sheet without any prima facie material and the mere fact that in the occurrence the Head of the State with his family has been murdered and that this is a sensational case cannot be a ground for refusal of bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 229. Section 498— Ordinarily when the petition is not pressed by the Advocate for the petitioner the same is rejected without expressing opinion. Since a Division Bench has already expressed opinion on the application and the judges differed in their opinion the difference should be resolved. There is no scope for not pressing the petition after it had been pressed and opinion expressed by the Division Bench. Belayet Hossain Sharif vs State 50 DLR 242. Section 498—Merely because a person is respectable, influential or highly placed in the society by reason of his being rich or educated or politically connected or otherwise holding important post or office he cannot avoid the due course of the law to appear before the courts below and use High Court Division as a substitute of the subordinate courts. Belayet Hossain Sharif vs State 50 DLR 242. Section 498—Power of granting anticipatory bail is very sparingly used by this Court to save a citizen from unnecessary harassment and humiliation in the hands of police on flimsy ground or with ulterior motive or out of political design. This power cannot be exercised in each and every case as a substitute to the exercise of such power by the court below. A person cannot be enlarged on anticipatory bail how high so ever he may be unless conditions for granting such bail are satisfied. Belayet Hossain Sharif vs State 50 DLR 242. Section 498-Since the petitioner has meanwhile been enlarged on bail by the trial Court, the merit of the case is not touched while deciding the question of entitlement to anticipatory bail. Belayet Hossain Sharif vs State 50 DLR 242. Section 498-In view of long detention of the accused petitioner for about two years without knowing when the trial of the case can be concluded and in view of the fact that some of the accused persons standing on the same footing have already been granted bail, the accused- petitioner should be granted bail. MA Sattar vs State 50 DLR 258. Section 498-Anticipatory Bail—the offence with which the petitioner has been accused of being punishable with death or imprisonment for life anticipatory bail cannot be granted though he is an elected Chairman. Abdur Rahman Molla vs State 50 DLR 401. Section 498— The petitioners of the respective Rule could not satisfy with cogent reason and materials the cause for not surrendering before the Court below. Orders of ad interim anticipatory bail granted by this Court are recalled and the petitioners are directed to surrender to their respective bail bond. Dr Mominur Rahman alias Zinna vs State 50 DLR 577. Section 498—Anticipatory bail—The spouses are at loggerheads both having taken recourse to court. There is possibility of the respondent husband being harassed. It is, therefore, difficult to hold that the High Court Division has granted him bail unreasonably or unfairly. State vs MA Malik 47 DLR (AD) 33. Section 498—Anticipatory bail—by the High Court Division directly is not granted as a matter of course except in exceptional cases such as physical inability to appear before the court of first instance, fear and lack of personal safety, lack of confidence and like circumstances (ref. Sadeq Ali’s case, 18 DLR (SC) 393. In the instant case we find the proceeding to be at an initial stage. No charge has yet been framed and two of the petitioners are ladies and most of the accused are quite elderly citizens of the country and some of them are suffering from heart trouble. These facts along with the order attending facts and circumstances of his peculiar case, unique in nature in our history, would call for an exercise of the power of this Court granting bail and more so when the matter of bail on merits has been examined by this Court in extension before the lawyers of both sides. Jahanara Imam vs State 46 DLR 315. Section 498—If the trial is not concluded within a reasonable time, the petitioner can pray for bail in the appropriate court. Emran Hossain vs State 1 DLR (AD) 137. Section 498—ln an appeal against a short sentence bail should be ordinarily granted in exercise of a proper discretion because usually it takes time to hear the appeal. The learned Judge would be justified in refusing bail if he could ensure the disposal of the appeal within a reasonable time, i.e., within 3-6 months, otherwise the refusal of bail will be manifestly unjust. It is difficult to appreciate why not even stay of realisation of fine was granted which is usually allowed. It seems that there has not been a sufficient realization of the purpose of appeal, nor of the guidance given by this Division in the cited case. Alaluddin vs State 51 DLR (AD) 162. Section 498—The basic conception of the word “bail” is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. An accused person is said, at common law, to be admitted to bail, when he is released from the, custody of the officers of the Court and is entrusted to the custody of persons known as his sureties who are bound to produce him to answer at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted. Per Latfur Rahman J (agreeing): By anticipatory bail we mean bail in anticipation of arrest. The distinction is that bail is granted after arrest and anticipatory bail is granted in anticipation of arrest, and therefore, effective at the very moment of arrest. In other words, unlike a post-arrest order of bail, it is a pre-arrest order of release. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242. Section 498—On principle it is true that in case of concurrent jurisdiction the lower Court should be moved first but it is not a hidebound rule. Per Latfur Rahman J (agreeing): Section 498 of the Code speaks of the High Court Division or Court of Sessions and, as such, I hold that an accused person may seek bail in either of the Courts at his option. I do not find any justification in curtailing the power of the superior Court, keeping the same to the Court subordinate to it. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242. Section 498—If the power under section 498 is held to be subject to section 497 then the High Court Division will be precluded from considering the malafide nature of a proceeding in a particular case merely because there is a prima facie allegation of an offence punishable with death or imprisonment for life. A prayer for pre-arrest bail should be considered without any feeling of fetter of section 497 at the first instance but the general principle as laid down in that section should always be there at the back of the mind of the Court, particularly the nature of allegation made against the accused in a particular case involving him with the offence. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242. Section 498—Pre-arrest bail is an exception to the general law and the Court will always bear in mind the caution of SA Rahman J in the case of Muhammad Ayub reported in 19 DLR (SC) 38. Generally speaking the main circumstances as would entitle an order for extraordinary remedy of pre-arrest bail is the perception of the Court upon the facts and materials disclosed by the petitioner before it that the criminal proceeding which is being or has been launched against him is being or has been taken with an ulterior motive, political or otherwise, for harassing the accused and not for securing justice, in a particular case. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242. Section 498—Prayer for anticipatory bail may also be considered may occur if it is proved that on account of public commotion or other circumstances it is not possible for the petitioner to appear before the lower Court. State vs Abdul Wahab Shah Chowdhuty 51 DLR (AD) 242. Section 498—It may even be possible to successfully make a prayer for bail on merit in the facts of a particular case but that alone can never be a ground for granting a prayer for pre-arrest bail. This prayer, extraordinary as it is, can only be considered, as already stated, when it appears to the Court that the purpose of the alleged proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by abusing the process of law, such as, harassment, humiliation, etc. of the accused which cannot be permitted. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242. Section 498—It is the duty of the accused to surrender before the Court in which his case is pending. He cannot continue on anticipatory bail even after submission of the charge-sheet and taking of cognizance of offence by the Court. Probir Kumar Chowdhury vs State 51 DLR 42. Section 498—It is for the trial Court to piece together all the fragments of the evidence. Reading the statements under sections 164 and 161 CrPC there appears now reasonable grounds that the petitioner may be parties to a criminal conspiracy for killing the 4 leaders in jail. So the prayer for bail is rejected. KM Obaidur Rahman vs State 51 DLR 51. Section 498—Ordinarily when warrant of arrest is issued against a person or a person is wanted in connection with a non-bailable offence of serious nature he is not entitled to get anticipatory bail. In this view, the ad interim anticipatory bail is recalled and the petitioners are directed to surrender to the Court below. Mir Shahidul Islam vs State 51 DLR 506. Section 498—When on the face of it prosecution case appears to be absurd and preposterous it would be unjust to refuse bail however serious and grave the allegation may be, because in a free and civil society liberty of a citizen can neither be circumscribed nor made subservient to of capricious enforcers of law, more so, when incarceration without trial stretches over a year and a half, without any date for hearing in sight. Kawsar Alam Khan vs State 52 DLR 298. Section 498—A Member of Parliament being enlarged on bail cannot avoid appearance before the trial Court simply on the plea that the Parliament is in session. KM Obaidur Rahman vs State 55 DLR (AD) 6. Section 498—The question of granting or refusing bail depends upon the particular circumstances of each case and the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33. Section 498—The grant of bail is the discretion of the court and the Court could consider the exercise of discretion if it is satisfied in the facts and circumstances of the case that the trial cannot be concluded within the specified time. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33. Section 498―The petitioner has been made an accused for alleged acts of forgery in creating affidavit and kabinnama and the subject matter of Criminal Proceeding has become, also, a subject matter of a suit in the Second Court of Assistant Judge, Chittagong and the petitioner and informant are a loggerheads. Exceptional and special circumstances appear to have existed for granting anticipatory bail to the petitioner. Patwary Rafiquddin Haider vs State 55 DLR 241. Section 498―Non-compliance of direction of High Court Division by the Court below as to conclusion of trial of the case within 4 months will not create any right to the accused Harun to be entitled to get bail disregarding the allegation of overt act against him. Court of law must act upon materials on record to decide the question of granting or non granting of bail. Harun-or-Rashid vs State 56 DLR 318. Section 498―The apprehension that there is possibility on the part of the petitioner to interfere with the process of investigation and of tampering with the evidence, has got no basis at all. The attending circumstances shown the petitioner deserve bail. Dr Qazi Faruque Ahmed vs State represented by the Deputy Commissioner 56 DLR 600. Section 498―The deceased was killed in her husband’s house and naturally he was then her best custodian and he is supposed to know the cause of her death, but the story narrated in the UD Case which was ended in the final report creates presumption about the implication of the husband in the occurrence. Moreover, there is no cause to consider the prayer for his bail in the light of the decision referred which was given in an appeal. Azam Reza vs State 57 DLR 36. Section 498―As the petitioner has no f to surrender at this stage and police is aftei the accused-petitioner is enlarged on a bail for limited period till submission of police report. Shakawat Hassan vs State 57 DLR 244. Section 498—When accused, is in custody he is not entitled to anticipatory bail. A Wadud Member vs State 59 DLR 586. Section 498—Since the accused-petitioners did not appear before the Magistrate nor took any step for recalling the warrant of his arrest, it is apparent that they are fugitives from justice having no protection of law. AKM Iflekhar Ahmed vs State 59 DLR 646. Section 498—In view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence if the trial is not concluded in the specified time the co-accused has been enlarged on bail, this Court is inclined to enlarge the appellant on bail. Abul Kalam vs State 60 DLR 254. Section 498―From the foregoing discussions and in view of the facts and circumstances of the case, we are led to hold that at this stage, the accused-petitioner cannot make any application for bail, far less anticipatory bail, under section 498 of the Code of Criminal Procedure, 1898. Accordingly, the instant application for anticipatory bail is summarily turned down. Ali Ahsan Mujahid vs State 60 DLR 359. Section 498—It appears that although charge-sheet has been submitted but charge has not yet been framed and, as such, completion of the trial is not likely to be soon. Furthermore, considering all the above matters we are inclined to grant bail to the accused-appellant. Ziad Ali Gazi vs State 61 DLR 807. Section 498—On reference to the record of Criminal Miscellaneous Case No. 13454 of 2008 we find that ad interim bail was granted to the victim petitioner treating her as accused-petitioner. This may be due to mistaken submission of her learned Advocate or due to inadvertence of the Court. Indeed, the victim was not an accused in the case. Question of her release or custody was not a matter for determination under section 498 of the Code. Not being an accused charged with commission of any offence she had no scope to seek bail under the provision of sections 496, 497 and 498. We have reason to find that application preferred by the victim under section 498 of the Code seeking bail was quite incompetent. It is difficult to maintain the order of ad interim bail in her favour either through inadvertence of the Court or mistaken submission of her Advocate. Aysha Begum vs State 61 DLR 493. Section 498—Anticipatory bail —Not to harass/arrest. If a fugitive surrenders before the High Court Division and prays for bail, it may either grant bail under section 498 of the Code, on the principle discussed or is obliged to hand him over to the police, to be dealt with in accordance with law. But directing the police not to arrest a fugitive, which the police is duty bound to do under the law, is an order beyond the ambit of the Code of Criminal Procedure or any other law, known to us. This kind of order may impede the investigation and ultimately frustrate the administration of criminal justice. State vs Zakaria Pintu 62 DLR (AD) 420. Section 498―The Court below has seen the CD and became sure about the transaction. The matter is still under investigation and if the mighty accused is granted bail the investigation of the case will be hampered as he holds very powerful position in the Anti-Corruption Commission. SM Sabbir Hasan vs State 63 DLR 368. Sections 498 and 499—The Tribunal has no power to impose a condition at all when it grants bail to an accused—Even the Tribunal is not competent to accept any offer of a condition by the accused in grantingbail beyond the pr-ovision of law. Rafiqul Islam vs State 58 DLR 244. Section 498-It has come to our notice that some of the benches of the High Court Division are exercising the power of granting anticipatory bail indiscriminately without adherence to law. In doing so the High Court Division travelled beyond its periphery. Such act of the High Court Division is deprecated seriously. Discretion the High Court Division exercised in granting anticipatory bail cannot be termed fair and intending to secure justice. Rather, such orders were capricious causing adverse impact upon the criminal justice system. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60 Section 498-Discretion vested in the High Court Division in dealing with the prayer seeking anticipatory bail must be exercised with due care and prudence depending upon the nature of accusations and averments. The High Court Division pitiably failed to go on in light of the guidelines and principles propounded by the highest court i.e. the Appellate Division. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60 Section 498- The latitude given to the High Court Division while exercising the discretionary power of granting anticipatory bail must be guided by the principles laid down by the Appellate Division. But the High Court Division passed the orders overstepping its limits. Such derogatory trend of the High Court Division shall leave an adverse impression upon the criminal to get an upper hand through the hands of law. We also direct the High Court Division to refrain from unscrupulous exercise of the power of granting anticipatory bail. State vs Md Kabir Biswas (Criminal) 75 DLR (AD) 60 Section 498-Granting of bail is undoubtedly a discretion of the Court. But, that discretion has to be exercised upon a sound footing of laws governing the gamut of a particular case. It has to be remembered that, it is not the prima facie case against the accused, but, the 'reasonable grounds' for believing that, he has been guilty is the concept of granting bail that gets paramount consideration. The Court has to examine the data available to connect whether reasonable grounds exist for considering, as such, in a particular case (for granting or non-granting bail) State vs AHM Fuad (Criminal) 75 DLR (AD) 241 Section 498-Anticipatory Bail- After the implementation of the Masdar Hussain judgment [52 DLR (AD) 82), transfer, promotion of the Magistrates are in the hands of the High Court Division, and as such bail petitioners' political assimilation cannot ipso facto ignite any apprehension of unfairness or impropriety. Durnity Daman Commission vs Dr. Khandaker Mosharraf Hossain, 66 DLR (AD) 92 Section 498-Anticipatory Bail Criteria-The following criteria shall follow while disposing of anticipatory bail applications. To open the jurisdictional door they shall satisfy themselves that reasons for apprehension have specifically. explicitly, plausibly, credibly and with sufficient clarity been assigned, instead of relying on any generalised pretension. That must be treated as the precursor. Political threshold of the petitioner or claimed rivalry, by itself, without further ado, shall not be a ground for entertaining an application. Non-bailability of the offence cited in the FIR cannot be a reason for the High Court Division's intervention for even the Magistrates/lower court/ tribunal Judges are competent enough to enlarge on bail a person accused of non-bailable offences in deserving cases. Effect of the accused's freedom on the investigation process must not be allowed to float on obfuscation. The High Court Division must scrutinise the text in the FIR with expected diligence and shall ordinarily be indisposed to grant anticipatory bail where the allegations are of heinous nature, keeping in mind the ordains figured at paragraph 19 of the case reported in 51 DLR (AD) 242. Interest of the victim in particular and the society at large must be taken into account in weighing respective rights. If satisfied in all respects, the High Court Division shall dispose of the application instantaneously by enlarging the accused on a limited bail, not normally exceeding four weeks, without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its own legal discretion without reference to the High Court Division's anti cipatory bail order. Durnity Daman Commission vs Dr. Khandaker Moshar raf Hossain, 66 DLR (AD) 92 Section 498-If the bail is granted to one co-accused, the other co-accused whose case stands on the same footing is entitled to get bail. Advocate Ruhul Kabir Rizvi vs State, 65 DLR 541 Section 498-Anticipatory Bail/Pre- arrest Bail-It is an extra-ordinary remedy and an exception to the general rule of bail which can be granted only in extra- ordinary and exceptional circumstances upon a proper and intelligent exercise of discretion. The High Court Division cannot exercise its discretion whimsically at its suit will. The High Court Division has not properly exercised its discretion in granting the accused-respondent on anticipatory bail. ACC vs Jesmin Islam, 67 DLR (AD) 1 Section 498-Anticipatory Bail- From the orders of bail of all the cases it appears that the High Court Division has failed to follow the guidelines indicated by this Division while disposing the applications for bail. Orders of anticipatory bail have been passed which cannot be considered as careful and proper exercise of extra-ordinary judicial discretion. State vs Mirza Abbas, 67 DLR (AD) 182 Section 498-It is settled principle of law and long standing practice that prayer for bail can be agitated at any time on different cause of action. MM Shabbir Hasan vs State, 64 DLR 465 Section 498-Where there is no prima facie case against the accused and the materials on record is of doubtful nature, the accused is entitled to be enlarged on bail. Bela va State, 64 DLR 85 Section 498-In the name of cont- inuous hartal the recent movement was raised to the scale of violent agitation involving targeted killing of innocent civilians by indiscriminate and massive explosions of petrol bombs and hand bombs, fire crackers and cocktails, arson, widespread rampage and vandalism; unprecedented and outrageous attack on the members of law enforcing agencies creating panic in the mind of general public which by any standard are organized criminal acts far exceeding the generally acceptable degree of enforcement of hartal in our country. (PER MD RUHUL QUDDUS J AGREEING WITH GOBINDA CHANDRA TAGORE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483 Section 498-The law laid down in the case of Abdul Wahab Shah Chowdhury has been further interpreted in the subsequent cases and the scope of granting anticipatory bail by the High Court Division has been increasingly restricted, though not altogether prohibited. Now the restrictive rules for all practical purpose have narrowed down the scope of anticipatory bail so much so that discretion of the Court is limited, to rare cases having apparent indication of falsehood initiated only to harass and humiliate the accused or to serve some other ulterior purpose. (PER MD RUHUL, QUDDUS AGREEING WITH GOBINDA CHANDRA TAGORE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483 Section 498-Even if there is any good ground for bail on merit in the facts of the case, that alone can never be a ground, for granting anticipatory or pre-arrest bail. In addition thereto, the accused is to show the Court that the purpose of the proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by abusing the process of law. (PER GOBINDA CHANDRA TAGORE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483 Section 498-The accused-petitioner is a candidate for the ensuring City Corporation Election and his nomination paper has been accepted and his election symbol has been allotted. Under these exceptional and extra-ordinary circum- stances the accused-petitioner may be enlarged on anticipatory bail. (PER QUAMRUL ISLAM SIDDIQUE J) Mirza Abbas Uddin Ahmed vs State, 67 DLR 483 Section 498-The accused had secured the reports on influencing the doctors. More so, accused is a under trial prisoner and if he at all has been suffering from those diseases, the jail authority ought have sent him to BSMMU where there is provision for keeping prisoners in prison cells. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230 Section 498-We are convinced that the accused has not only misled the court below, he has also misland the High Court Division and this Court as well by showing various ailments of serious nature and in connivance with the doctors, he has secured the order of bail. He has also prevented the trial court to proceed with the trial of the case. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230 Section 498-The trial of a sensational murder case is being delayed and thereby, they have been interfering with the administration of justice. State vs Mahtab Uddin Ahmed Chowdhury (Minar), 68 DLR (AD) 230 Section 498- In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. The language of the law itself is so clear that in case an accused person who is alleged to have been involved in a bailable offence shall be enlarged on bail. This is a statutory right and the Court cannot curtail such right. True, the allegation is serious but it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. Mia Nuruddin (Apu) vs State. 68 DLR (AD) 290 Section 498-If the police is allowed unlimited time to complete the investi- gation it appears that there is no accountability in their action, and therefore it would tantamount to give upper hand to them depriving the petitioner to get fair treatment. (Per Md Mozibur Rahman Miah, Jagreeing with Sheikh Abdul Awal, J) Md Hossain (Driver) vs State, 70 DLR 20 Section 498-Mere considering the quantity of contraband drugs cannot be any deciding factor to grant or refuse bail to any accused person rather discretion should be exercised in granting bail considering the overall averments so figured in the prosecution documents. (PER MP MOZIBUR RAHMAN MIAH, JAGREEING WITH SHEIKH ABDUL AWAL, J) Md Hossain (Driver) vs State, 70 DLR 20 Sections 498 and 561A-After sub- mission of the police report, there is no scope for anticipatory bail or pre-arrest bail. Ali Haider Chowdhury vs State, 65 DLR 116 Sections 498 and 561A-Indisputably the petitioner straightaway surrendered before the High Court Division without surrendering to the Court below and obtained pre-arrest bail It is well-settled that an order of anticipatory or pre-arrest bail can not be passed after submission of police report in a case. Nurussafa vs State 64 DLR 80 Sections 498 and 561A-Fugitive- Direct surrender before the High Court Division for the first time after submission of police report or after framing of charge by an accused will be "de hors" the law giving rise to judicial indiscipline and anarchy. Nurussafa va State, 64 DLR 80 S. 499 and 501-The words used in the subject matter of defamation is not a matter to hurt the religious feeling of the complainant in any manner whatsoever. Moreso, in the re-joinder the petitioner expressed his sincere regret for publishing the same stating that it has done in good faith, and he had no intention to hurt anyone of his religious feelings. Shafiq Rehman Vs. Mohd. Hasanul Alam and another, 2 LNJ (2013)-HCD-229. Section 500—When an accused is discharged pursuant to a final report that means that the accused has been discharged from custody under section 500 of the Code and not discharged from the case. Nurul Hoque vs Bazal Ahmed 48 DLR 327. Sections 509 and 509A-The inquest and post-mortem reports were tainted with ill motive and appropriate departmental proceedings should be commenced against the persons, who did it to defeat justice. State vs Md Rafiqul Islam alias Shakil, 70 DLR 26 Section 509A—Post-mortem report although excluded from consideration while dealing with the prosecution ease due to its having been brought on record without compliance of the provision of section 509A, the defence could very well use and refer to any portion of the report for its own purpose and for assisting the Court in reaching its decision. Tariq Habibullah vs State 43 DLR 440. Section 509A—Post-mortem report—For bringing such report in evidence strict compliance of section 509A of the Code is necessary. The report of the post-mortem examination was neither produced by the doctor who had held the post-mortem examination nor the doctor was examined as a witness in the trial. While producing the report PW 7, an Investigating Officer, had shown no cause explaining the circumstances under which the doctor could not be produced in court. Tariq Habibullah vs State 43 DLR 440. Section 509A—Post-mortem report—The trial Court committed error of law in considering and relying upon the post-mortem report when it was produced in court without fulfilling the requirements of section 509A. Khelu Mia vs State 43 DLR 573. Section 509A—Report of post-mortem examination—As the doctor concerned who held the post-mortem examination was not examined although he was available in the country at the relevant time, the report was not legally admitted into evidence and as such the conviction based thereon is illegal. Abdul Quddus vs State 44 DLR 441. Section 509A—Post-mortem report is an admissible evidence when three requirements laid down in the section are satisfied. Ezahar Sepai vs State 40 DLR 177. Section 509A—The post-mortem report was not a substantive evidence before insertion of section 509A in the Code of Criminal Procedure by Ordinance No. 24 of 1982. Ezahar Sepai vs State 40 DLR 177. Section 509A—Non-examination of the doctor was not fatal for the prosecution case. Conviction can be based on the evidence of a solitary witness if the testimony is not tainted with suspicion. Ezahar Sepai vs State 40 DLR 177. Section 509A—Ext. 13, post-mortem report of the deceased, has been admitted into evidencei in utter violation of the mandatory provisions of section 509A. The doctor who held the post-mortem on each of the dead bodies was not examined during the trial. Md Ali Haider vs State 40 DLR 97. Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. The prosecution filed an application for issuing warrant against Dr M Billah Azad for his appearing in Court, and it was allowed by the order dated 29-2-88. It does not appear from the record that after the application filed by Dr M Billah Azad, any summons was issued and served on him or the said warrant of arrest was executed. Nevertheless, the prosecution filed an application on 1-3-88 vaguely stating that his present address was not known, although his address was available in the record. The learned Sessions Judge, it seems, without noticing the conditions of section 509A of the Code of Criminal Procedure accepted the post-mortem report as Ext.10 Learned Sessions Judge illegally admitted into evidence the said post-mortem report without noticing that the prosecution did not care to fulfil the conditions of section 509A Ext. 10 is thus inadmissible in evidence and so there remains no positive proof as to the cause of Amiruddin’s death. State vs Fulu Mohammad 46 DLR 160. Section 509A—The doctor who examined the victim girl was not available and therefore another doctor PW 9 was examined to prove the handwriting of the examining doctor. His report was admissible in law. Sobesh Ali vs Jarina Begum 49 DLR (AD) 143. Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. State vs Fulu Mohammad 46 DLR 160. Section 509A—The case is the outcome off admitted enmity between the parties—The failure to examine the doctor who held post-mortem examination on the body of the deceased to together with absence of any alamat justify the defence case. Jalal Uddin vs State 56 DLR 69. Section 509A—The post mortem report admitted into evidence without complying with the requirements of section 509A of the Code must be left out of consideration. There is therefore, no medical evidence as to the cause of death of the deceased. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653. Sections 512 & 339B(2)—Since section 339B(2) provides for absentia trial, section 512 has no application in the case of an accused who appeared before the court but thereafter absconded. Baharuddin vs State 47 DLR 61. Section 516A—Section 516A empowers a criminal Court to pass an order for custody and disposal of property during any enquiry or trial and it does not empower an Investigating Officer to give any property in the custody of any person. Siddique Ahmed Sowdagar vs State 40 DLR 268. Section 516A—Where the offence is not committed regarding particular property the Court has no authority to pass order directing sale of such property and deposit the sale price in Court’s account. Shahabuddin vs Abdul Gani Bhuiyan 45 DLR 217. Section 516A—Custody of property pending trial for theft and cheating—Jurisdiction of civil Court over such property—Order passed by the criminal Court giving custody of a vessel, the subject-matter of the criminal case, to the local Upazila Chairman was subject to revision and the application under section 151 CPC made before the civil Court by the complainant as the plaintiff in his suit for injunction is misconceived. Mitali Shipping Lines vs Bhuiyan Navigation Agency 44 DLR 230. Section 516A—The Court is entitled to release the property in the Jimma of the claimant to save the same from gradual damage being exposed to sun and rain. The petitioner claiming to take the same in his jimma is bound by the bond to produce the same in Court on and when directed by the Court. Shahnewaz Karim vs State 62DLR 67. Sections 516A & 517—About disposal of property, there is no provision in the Act and therefore the Special Tribunal shall dispose of the property under section 51 6A or 517 of the being empowered to do so by section 29 of the Act which provides that the provisions of the Code of Criminal Procedure, so far only as they are not inconsistent with the provisions of the Act, shall apply to the proceedings of Special Tribunals, and Special Tribunals shall have all the powers conferred by the Code Criminal Procedure on a Court of Sessions exercising original jurisdiction. Mahbub Alam vs Commissioner, Customs, Excise and VAT 62 DLR 395. Section 517—Disposal of seized goods—It is for the trial Court to consider all the relevant facts and hear all the necessary parties before making an order for disposal of goods under section 517 CrPC, if called upon. Sompong vs State 45 DLR (AD) 110. Disposal of Property For an order to be passed under the provision of section 517(1) Cr.P.C for disposal of the goods after the conclusion of an enquiry or trial, the Court has to satisfy itself as to the conditions mentioned therein-Cr.P.C. S. 517(1) Sompong Vs. The State 13BLD (AD) 121 Sections 517, 520 and 561A—Stolen necklace—Whether the possession of the same should be restored to the petitioner who was acquitted of charge of retention of stolen property due to incomplete evidence and also upon benefit of doubt—Stolen necklace cannot be restored to the petitioner under such circumstances. Hajera Khatoon vs State 40 DLR 280. Section 517(1)—The Court has a very wide discretion as to the mode of disposal of the property produced before it or in its custody. Monaranjan Das vs State 40 DLR 485. S. 517 and 561A- Disposal of a seized property after trial and abuse of the process of the Court. The Magistrate has the power to make order of temporary custody of a property produced before him regarding which an offence appears to have been committed or which appears to have been used for the commission of the offence. The Magistrate has no power to decide the question of title. His only concern is to see which of the contending parties is prima facie entitled to ownership and possession thereof and to hand over its possession to him for avoiding damage and destruction of the property on obtaining proper jimmanama undertaking to produce the disputed property before the Court whenever so directed. The learned Magistrate as well as the disputed property before the Court whenever so directed. The learned Magistrate as well as the learned Additional Sessions Judge erred in law in refusing to had one. The CNG in question to the possession on jimma (bond). Md. Mamun Vs. The State (Cri), 2 ALR (2013)-HCD-344. Section 522—Power to restore possession of immovable property—Provision of section 522 of the Code cannot be made applicable to the j’ accused persons by filing a separate application to the trial Court after disposal of the appeal and revisional application arising out of the case against him under section 447 Penal Code. Dr Md Abdul Baten vs State 43 DLR 60. Section 522—Restoration of possession of immovable property—The order of the Court restoring possession must be passed within one month from the date of conviction. The Magistrate having passed the order of restoration beyond 30 days of the order of conviction acted without jurisdiction. The provision of section 522 cannot be availed of if the dispossession is not by means of criminal force or show of force or criminal intimidation. In the instant case the accused petitioner wrongfully entered into the shop at 10-30 PM but at that time the complainant opposi party or his wife, who was the tenant, was not upon the scene. There was neither assault nor any resistance or use of criminal force in the act of dispossession by the accused-petitioner. The Magistrate’s order is bad on this count also. Sheikh MA Jabbar vs AKM Obaidul Huq 43 DLR 233. Restoration of possession It provides that whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the court that by such force or show of force or criminal intimidation any person has been dispossessed of any immovable property, the court may, if it thinks fit, when convicting such person or at any time within one month from the date or the conviction order the person dispossessed to be restored to the possession of the same. The use of force, show of force or criminal intimidation at the time of criminal tres- pass upon the case land had not been held proved in the trial court or in the appellate. court. The High Court Division has found no illegality in the said concurrent findings. In the circumstances the said Court has acted beyond jurisdiction in passing the order for restoration of possession of case land to the complainant-Cr.P.C Section. 522(1) Mohammad Ali Member Vs. Abdul Fazul Mia &ors., 19BLD (AD)260 Section 523(1)—The act of the Investigating Officer to give custody of the property on the basis of the practice in vogue in the Police Department without any support of the statutory provisions of law to that effect in violation of section 523 CrPC is without any lawful authority and is illegal. Siddique Ahmed Sawdagar vs State 40 DLR 268. Witness protection Security of the informant and the witnesses has to be ensured: On perusal of the impugned judgment it reveals that the High Court Division came to a finding that both the parties forced each other to give false testimony or give testimony in favour of either of the parties. And as such the High Court Division ought to have directed the law enforcing agency to take necessary steps for ensuring security of the informant and the witnesses of the case so that they could adduce their evidence in court without any fear. (Para 11) We are of the view that justice would be best served if we direct the Superintendent of Police, Narayangonj to take all necessary steps for ensuring security of the informant [petitioner] and witnesses of the case, so that they may adduce their evidence in the Court without any fear and interruption from any corner. Accordingly, the Superintendent of Police, Narayangonj is directed to take necessary steps in ensuring security of the informant [petitioner] and witnesses of the case so that they may adduce their evidence in the Court in accordance with law. (Para 13 and 14) [Mst. Fatema Vs. The State & ors (Jahangir Hossain, J) 17 SCOB [2023] AD 79] Section 526-High Court Division without issuing any Rule upon the State disposed of the application transferring the case from the Divisional Special Judge to the Sessions Judge, Barisal. Appellate Division does not approve this kind of exercise of power by the High Court Division. Anti-Corruption Commission vs AKM Shamim Hasan, 64 DLR (AD) 82 Section 526—Transfer of case—Plea of bias—The question of admissibility or non-admissibility of evidence should be left to be agitated when the case is argued. Merely because a Court acted illegally in allowing some evidence to go into the record or disallowing some evidence as irrelevant or took a wrong view of the law in passing an order would not by itself be a ground for bias (Per Anwarul Huq Chowdhury) Per Habibur Rahman Khan J (agreeing): In the present case the order refusing to grant adjournment having been passed by the Special Tribunal not in violation of any mandatory provisions of law but in exercise of his discretionary power, could not itself give rise to a ground for transfer as no prejudice could be shown to have been caused to the accused Hussain Mohammad Ershad vs State 43 DLR 347. Section 526—Transfer of a criminal case— Conditions for transfer—The High Court Division may withdraw a case to itself without issuing any notice upon either party when some question of law or unusual difficulty is involved therein. Neither of these situations is present here. There is no justification for the impugned transfer. Sirajul Islam (Md) vs Keramat Ali Bhuiyan 47 DLR (AD) 64. The petitioner is an old man and Professor of a University suffering from ailments and is not able to go to Gopalganj. Considering the nature of the case we direct that the case may be withdrawn from the Magistrate Court. Gopalganj to the Court of Chief Metropolitan Magistrate, Dhaka where the petitioner must surrender and pray for bail. Dr. Ahmed Sharif Vs The State and an- other, 17BLD(HCD)236 Section 526―The order of transfer of the case is set aside as the Court below unwillingly transgressed a basic principle of adjudication— ‘hear the other side’—for an opportunity to meet allegations. Khalequzzaman vs Md Illias 48 DLR (AD) 52. Section 526―The High Court Division can suo motu transfer a sessions case. The informant and his victim brother by preferring the application has merely informed the High Court Division about the state of the circumstances surrounding the sessions case. Jahir Gazi vs Belal Hossain, Advocate 51 DLR (AD) 88. Section 526―Order of transfer of a case passed ex parte without any notice either to the accused or to the State and without calling for any report from the Court concerned by merely saying that without accepting or rejecting the grounds for the transfer the Court thinks justice will be met if the case is disposed of by the Court of Sessions Judge cannot be legally sustained. Moslem Uddin (Md) vs State 52 DLR (AD) 50. Section 526―For transfer of a criminal case from one Court to another or from one District to another, there must exist a reasonable apprehension in the mind of the applicant that he will not get a fair and impartial trial in the Court concerned. Allegation of bias in the Court may provide a good ground for transfer, provided there is some factual basis to substantiate it. Shahjahan Faraji vs State 54 DLR 457. Section 526―The contention that the transfer of the case from Munshiganj to Dhaka for trial will tend to the general convenience of the parties as most of the witnesses hail from Dh has substance. Roquib Mohammad Fakrul alias Rocky vs Md Abdul Kashem 56 DLR (AD) 191. Section 526—unless the truth or basis of the apprehension is shown the High Court Division cannot accept prayer for transfer. Abdul Halim Ukil vs State 56 DLR 481 Section 526―When any party to any proceeding informs the court that he will move an application for transfer of the case from the Court, presiding officer of the court must then and there stop his pen in order to offer scope to the party to move such petition and wait for instruction. He can, in no way, move forward with the trial of the case. Abdul Halim Ukil vs State 56 DLR 481. Section 526―Forum for trial of the case should not be decided at the whim of the parties— Grounds alleged by the petitioners being not consonant with section 526 of the Code, the petition for transfer of the case is rejected. Abdul Mataleb Howlader vs State 56 DLR 607. Section 526―Transfer of case—the complainant, a local leader of the ruling party, is trying to put pressure on the local administration and magistracy —As such, fair and impartial trial may be hampered. The accused being prominent personalities in the field of Journalism, are residing in Dhaka—When their security of life is apprehended if they are to go to Magura frequently in connection with the trial, their inconvenience and apprehension of insecurity of life may be taken into consideration. Mahfuz Anam vs State 58 DLR 60. Section 526(1)—When the Additional Sessions Judge has already observed that he entertains doubt as to whether the State will succeed in proving the case against the accused, the State has every reason to think there will be no fair trial in his court and the case needs be transferred to some other Court of competent jurisdiction. State vs Auranga @ KM Hemayatuddin 46 DLR 524. Section 526B—Counter cases, trial of—It is desirable that counter case be tried by the same judge simultaneously—by such trial the court will get opportunity for looking to all the aspects of both the cases which is necessary for arriving at a correct decision and to avoid conflicting findings. Lutfar Rahman vs Aleya Begum 45 DLR 57. Section 533 of the Code of Criminal Procedure allows for taking evidence of learned Magistrate to cure the defect if the provisions of sections 164 and 364 of the Code are not complied with but there is a condition. The defect can only be cured if the error has not injured the accused as to her/his defence on merit. Learned Magistrate, who recorded the confession deposed as PW 11 did not state the reason why he had recorded the confession beyond the Court hour. He rather admitted that he had recorded the confession at about 7.30 pm, which was long after the Court hour. Thus, the defect was in no way cured. [73 DLR 348] Section 533—Any irregularity in recording the confession is curable under section 533 CrPC. Ratan Kha vs State 40 DLR 186. Section 533—Credibility of confessional statement—No substantial compliance i cure the defect of non-compliance with the provisions of section 164 CrPC on material points. Confessional statement in a plain paper without the narration of questions and answers would not, by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happened, how he warned and gave time for refection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s believing the same to be voluntary ought to be treated as conclusive evidence of facts stated therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389. Sections 533 & 164—The recording of the statement on a foolscap paper and mere omission of endorsement cannot be considered as fatal defect. The breach of the provision of law, if any, is a technical one and by that the evidentiary value of the confessional statement cannot be blown away. The defect is very much curable under section 533 of the Code of Criminal Procedure. Syed Ahmed vs Abdul Khaleque 51 DLR 43. Section 535-Though accused Mobile Quader was not charged under sections 302/109 of the Penal Code, in view of the provisions of section 535 of the Code, we do not find any legal difficulty in finding him guilty under the sections and convicting and sentencing him thereunder as there are abundance of evidence against him to warrant the conviction under the sections. Moreso, we do not see any prejudice to be caused to accused Mobile Quader for non framing of charges against him under sections 302/109 of the Penal Code by the Tribunal as he got all the opportunities to defend him by cross examining the prosecution witnesses State vs Abdul Kader @Mobile Kader. 67 DLR (AD) 6 Section 537-Cognizance Scheduled and non-scheduled offence-When the very taking of cognizance of an offence, the framing of accusa- tion and the trial upon charges of both scheduled and non-scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing of charge by the Court having jurisdiction is one thing while framing of charge without having any jurisdiction is a completely different thing. Mozammel Huq vs State 43 DLR 614. Section 537-Even if it is assumed that the Session Judge has not taken cognizance of the offence after the case was 'sent" by the Magistrate, the trial of the accused shall not be vitiated in view of section 537 of the Code. Whenever a death sentence is passed by a Court of Session, it is sent to the High Court Division for confirmation. The High Court Division has power to confirm the sentence or annul the sentence and by reason of any defect or error in the procedure, death sentence cannot be vitiated. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 537-Sentence in lump is a mere irregularity curable by section 537 of the Code. Be that as it may, the trial Judge should have sentenced the accused- Ambassador under either of the sections of the two enactments keeping in view the legal position as spelt out. ATM Nazimullah Chowdhury va State, 65 DLR 500 Section 537-Since there appears no special defence case on behalf of the accused in respect of the trap case that the PW I who led the trap party had any connivance with Abdus Salam Khokon in order to make a trap, such a defect which might have been taken place for the very new enactment of the Rules and as I have said it earlier that after 11 days of the enactment of the Rules, the occurrence of this case has taken place, so the defect in obtaining the permission from the authority by PWI who led the trap party is curable under section 537 of the Code. Mohoshin Miah (Md) vs State, 67 DLR 114 S. 537-Sentence in lump is a mere irregularity curable by section 537 of the Code. Be that as it may, the trial Judge should have sentenced the accused Ambassador under either of the sections of the two enactments keeping in view the legal position as spelt out. ATM Nazimullah Chowdhury Vs. State, 65 DLR (2013)-HCD-500. S. 537-By reason of error or omission in the charge; the conviction shall not be reversed and altered. In the instant appeal, Appellants were convicted under different counts including sections 302/34 of the Penal Code for causing the death of victim Sukkur Ali. Appellate Division held that the trial court has not followed the provision of law and convicted the appellants without application of its judicial mind, which is an irregularity on the part of the trial court, at the same time it cannot be ignored that this irregularity has prejudiced the appellants who suffered a lot for no fault of theirs but for the laches of the learned Sessions Judge. On consideration of their sufferings, appellate divisions view is that ends of justice will be best served if the appellants are given the benefit of doubt instead of sending the case back on remand for fresh examination. Accordingly, appellants are acquitted of the charges and set at liberty. Habibur Rahman & Habu and others Vs. The State, (Criminal), 18 MLR (2013)-AD-108. Section 537—When sanction for prosecuting government servant is invalid, the trial Court would not be a court of competent jurisdiction and a defect in the jurisdiction of the court can never be cured under sections 5 & 7 CrPC. Abdul Hakim vs State 45 DLR 352. Section 537—The remand order amounts to double jeopardy for the petitioners and offers chance to the prosecution to remedy its lacuna. Such a remand ‘should not be made. Fazal vs State 43 DLR 40. Section 537—Cognizance—Scheduled and non-scheduled offence—When the very taking of cognizance of an offence, the framing of accusation and the trial upon charges of both scheduled and non-scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing of charge by the Court having jurisdiction is one thing while framing of charge without having any jurisdiction is a completely different thing. Mozammel Huq vs State 43 DLR 614. Section 537—Adoption of a procedure prohibited by Code of Criminal Procedure is not curable by section 537 CrPC. Lal Miah vs State 40 DLR 377. Section 537—Defect in framing of charge when not curable—a mere defect in framing of charge by a court having jurisdiction is one thing while the framing of charge without having any jurisdiction is a completely different thing. The contention that section 537 of the Code could be invoked to cure defect due to lack of jurisdiction cannot be accepted. Joinder of scheduled and nonscheduled offences and the trial of both these offences were illegal. Mozammel Hoq vs State 42 DLR 527. Section 537—This provision of law will also apply to the Criminal Procedure Code including section 155. The prevailing opinion is that section 537 may be taken to cover the error, omission or irregularity in the widest sense of these terms provided there has been no failure of justice and there is no restriction in the section itself. Golam Moula Master vs State 46 DLR 140. Section 537—Sentence passed in lump is only an irregularity not affecting the Court’s competence to pass order of conviction and sentence. Haider Ali Khan vs State 47 DLR (AD) 47. Section 537—A Special Tribunal is not competent to try a case under the Criminal Law Amendment Act, 1958 read with the provision of the Prevention of Corruption Act, 1947. The Assistant Sessions Judge either out of ignorance or due to his callousness signed the judgment as Special Tribunal. But the accused-appellant has not been prejudiced in any manner whatsoever. So on this ground alone there cannot be any question of the trial to be vitiated for want of competence. Nizamuddin Dhali (Md) vs State 48 DLR 507. Section 537—Defect in framing the charge is curable and that for improper examination of the accused under section 342 the case should be sent back on remand for curing the defect. Nizamuddin Dhali vs State 48 DLR 507. Section 537—Though the words “finding, sentence” in this section relate to concluded trial or hearing the word “order” does not relate to only concluded trial or hearing but also to order passed in a pending proceeding. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291. Section 537—While framing charge against the accused under sections 2 and 4 of the Anti- Terrorism Act, 1992 the missing of words ‘পরিকল্পিতভাবে বা আকস্মিকভাবে’ is a simple omission which is curable under section 537 CrPC. Abdul Kader @ Manju vs Stale 46 DLR 605. Section 537—The sanction order seems to be too mechanical and is no sanction in the eye of law. Absence of sanction cuts at the very root of the prosecution affecting jurisdiction of the court and this defect is not curable. Syed Mustafizur Rahman vs State 53 DLR 125. Section 537—Although the charge framed under section 399 of the Code is patently defective, there are sufficient materials on record to justi1,’ the conviction of accused the under section 399, he being a member of the assembly consisting of 8/9 persons. Karam Ali vs State 54 DLR 378. Section 537—The omission of the expression ‘যৌতুকের জন্য’ which is a vital ingredient of the offence under the aforesaid sub-section (2) being a major omission makes the charge materially defective and the defect is not curable under section 537 of the Code because this omission deprived the accused from taking proper defence and thereby caused prejudice to him. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527. Sections 537, 155 & 190—Non cognizable offence—Mere irregularity like investigation by an officer not authorized to investigate a no cognizable offence does not affect the legality of a proceeding of a Court below. Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140. Sections 537 & 243—The alleged admission of guilt was not recorded as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the violation of which causes prejudice to the accused and is not curable under section 537 CrPC. The order of conviction and sentence as against the appellant on the basis of such so-called admission of guilt cannot therefore be sustained in law and the same should therefore be set aside in the interest of justice and the case should be sent back on remand to the trial Court to hold that trial afresh from the stage of framing the accusation or charge again after hearing the parties and considering the materials on record in accordance with the law in the light of the observations made above. Saheb Ali Miah vs State 46 DLR 238. Sections 537 & 342—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abdul Khayer vs State 46 DLR 212. Sections 537 & 342—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abul Khayer vs State 46 DLR 212. Sections 537, 342 & 164—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57. Section 540—Examining prosecution witnesses as Court witnesses—Magistrate has power to summon material witness whose relevance is disclosed in evidence, but he cannot examine them as Court witness—Magistrate’s order has been modified accordingly. Helaluddin vs State 40 DLR 352. Section 540―Scope of section 540 consists of two parts—the first part is discretionary and the second part is obligatory. Md Jalaluddin Ahmed vs State 40 DLR 564. Section 540—It is obligatory for the Court to allow the examination of witness if he thinks it is essential for the just decision of the case. The accused will not be prejudiced if the witness is examined in the Court. Md Jalaluddin Ahmed vs State 40 DLR 564. Section 540―The ends of justice have been negatived by the trial Court by refusing to recall certain witnesses for cross-examination by the appellant. The trial Court is not meant for only convicting or acquitting the accused persons but their duty is to administer justice. In the present case before us by refusing to recall certain witnesses for cross-examination by the appellant the ends ofjustice have been negatived by the trial Court. In such circumstances for ends of justice we are inclined to set aside the order dated 1-Il- 88 passed by the learned Tribunal and direct him for affording opportunity to the appellant to cross- examine the witnesses already examined by the prosecution. This is very much necessary for ends of justice. Jamil Siddique vs State 41 DLR 30. Section 540—Court’s power to examine witness not named in the FIR—The scope of the provision in CrPC in this connection appears to be wide. It gives a discretion to the court to examine such witness at any stage. It is imperative for the Court to examine such a witness if his evidence appears to be essential for a just decision. Akhtar Jahan vs State 42 DLR 413. Section 540—Power to summon material witness—Any party to a proceeding during the trial may point out the desirability of relevant evidence being taken and there is no limitation with regard to the state or the manner in which it is to be used. The only criterion is that the power to examine additional witness is to be used before the pronouncement of judgment and it is to be found necessary by the Court for doing justice. It appears that due to certain circumstances beyond the control of the prosecution the witnesses could not be produced and examined earlier but evidence is vitally important for the just and proper adjudication of the case. The learned Additional Sessions Judge having passed the order for the examination of the additional witness after due consideration of the facts and circumstances of the case invoking the aid of the provision of law being herself convinced that examination of the witness is necessary for proper adjudication of the case we do not find any illegality or impropriety in the order calling for interference in this revisional jurisdiction. Hemayatuddin vs State 46 DLR 1. Section 540—The section is expressed in the widest possible term— It cannot be said that the intention of the section is to limit its application to Court witnesses only. Hemayatuddin @ Auranga vs State 46 DLR (AD) 186. Section 540—There is absolutely no material to show that accused Ramizuddin had any knowledge about the proceeding ever since it was started against him, as at all material times he was abroad. In that view the discretion exercised by the Additional Sessions Judge allowing the accuser’s application for cross-examination of PWs affirmed by the High Court Division calls for no interference. Nimar Ali vs Ramizuddin 50 DLR (AD) 162. Section 540 No doubt under section 540 of the Code the Court can call for any witness for the ends of justice. However, for passing such order, the trial Court or Court of appeal below must be given satisfactory reasonings in issuing the summons to the witnesses. 29 BLC (AD) (2024) 45 Section 540―Section 540 of the Code is expressed in the widest possible terms—It cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Chutta Miah vs State 56 DLR 610. Section 540―It is only for the purpose of just decision of a case that the Court can have resort to section 540. Shahinur Alam @ Shahin vs State 56 DLR 10. Section 540―This section is expressed in the widest possible term and it cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Kazi Ali Zahir alias Elin vs State 56 DLR 244. Section 540―The Court shall summon and examine witness under this section only if it appears to it essential for a just decision in the case. Tofail Ahmed vs State 56 DLR 250. Section 540—Question of further investigation of the case for including names of two witnesses as charge-sheet witnesses does not arise, for, the court has power to examine any person as a witness. The name of any person is included as witness in the charge-sheet or not is immaterial. Ayub Ali vs State 57 DLR 230. Section 540—Court is entitled to call for as many witnesses as required for bringing out the truth. The Sessions Judge is the arbiter and the Judge. He is not party nor an investigator. He is not expected to fill up the gaps left by the prosecution. The overriding consideration for him while exercising power under section 540 CrPC is the interest of justice. Mahatab vs State 63 DLR 223. Section 540—Since the accused-petitioners prayed for recalling PW 2, PW 3 and PW 4 as they omitted to cross-examine them on some vital points which are essential to find out the truth, the trial Court ought to have allowed the application. Shariful Bhuiyan vs State 63 DLR 524. Section 540-It is now well settled that the trial Court has unfettered power under section 540 of the Code to call any person to be examined as witness at any stage of trial or inquiry, if it appears essential for just decision of the case before it, no matter whether his statement was recorded under section 161 of the Code. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500 Section 540A-The petition under section 540A was filed by the Public Prosecutor, though it has not been expressly mentioned whether the Public Prosecutor can file such an application; the Code does not prevent the Public Prosecutor from filing as such. The case reported in 14 DL.R, aides us in concluding that, where there is no such provision preventing the Public Prosecutor from filing such an application, there is no harm if the Public Prosecutor draws the attention of the Court by filing such an application for the sake of expedition and deliverance of Justice. Begum Khaleda Zia vs Anti- Corruption Commission, 70 DLR 755 Section 540A-Although it is, of course, desirable for the accused to be present during the argument stage of the trial, it is less important since, the argu- ments are usually prepared by the Advocates, based on the instructions of the accused. This is to say that, at times where the accused has chosen to absent them- selves from the trial, and in particular, during the argument stage; assuming they have representation, the Court may take the view that for the sake of delivering appropriate Justice, the trial should continue in their absence. Begum Khaleda Zia vs Anti-Corruption, Commission, 70 DLR 755 Section 540A-The application under section 540A of the Code clearly is intent on ensuring the deliverance of Justice, especially when faced with a non- cooperative accused. Whether the accused is in custody or not has no direct relation to the application of section 540A and, as such, the Judge has not failed in his considerations. Begum Khaleda Zia vs Anti-Corruption Commission, 70 DLR 755 Section 540A-Either, Begum Khaleda Zia is to be forced into appearing in Court or alternatively, she may be allowed to exercise her right to not appear in Court, while allowing the Court to exercise their prerogative under section 540A of the Code and continuing with the trial or inquiry in her absence. Begum Khaleda Zia vs Anti-Corruption Commis- sion, 70 DLR 755 Section 540A—Complaint case and police case over the same incident—How their trial will proceed—A fair procedure to be adopted in the disposal of the two cases would be for the Trial Judge to take up the complaint case first for trial. The Trial Judge may call the witnesses mentioned in the police case, if they are not already examined on behalf of the complainant, as court witnesses so that they can be cross-examined by both the parties. If the trial ended in conviction in the Complaint Case the Public Prosecutor would consider whether prosecution of police case should be withdrawn with permission of the court or not. If the police case is taken up first for trial the complainant would be under handicap insofar as to cross-examining the witnesses- for the prosecution. Normally, the Public Prosecutor is to be in charge of the case even if the trial is based on a private complaint. Motleb Mondal vs State 58 DLR 282. Section 540A- Section 540A of the Code indicates that the personal presence of the accused is not always mandatory, the Court can exempt from personal appearance if the conditions provided therein are fulfilled- To grant or refuse to grant exemption from appearance to an accused is in the discretion of the court, and where the discretion is properly exercised, a superior court should not interfere with it. From the facts and circumstances mentioned above, it appears that the discretion of the Special Judge as provided in section 540A of the Code of Criminal Procedure has been exercised judicially and reasonably. From the order of the Special Judge it appears that the petitioner was represented by the learned Advocates who are 126 in number. Since the petitioner herself asserted before the Court that she would not be able to appear before the Court and that jail authority by endorsement intimated the Court that the petitioner is physically sick and she would not appear before the Court and that the learned Advocates of the petitioner. In such a situation, the learned Special Judge did not commit any error of law in exercising its discretion. Existence of the Courts is for dispensation of justice. The process of Courts should not be used for harassment of the parties. Section 540A of the Code indicates that the personal presence of the accused is not always mandatory, the Court can exempt from personal appearance if the conditions provided therein are fulfilled. However, such discretion has to be exercised reasonably, fairly and not arbitrarily. The High Court Division rightly rejected the criminal revisional application.... Begum Khaleda Zia =VS= Anti-Corruption Commission, [6 LM (AD) 208] Section 549—Since the appellants were not on active service within the meaning of section 8(1) of the Army Act, 1952 the appellants cannot be tried under the Army Act and, as such, there was no offence of mutiny leading to murder in the facts of the instant case. Even if one were to accept for the sake of argument that offences committed were civil offences within the meaning of section 8(2) read with section 59(2) of the Army Act, there is no legal bar in trying those accused persons in the Sessions Court in compliance with the provisions of section 94 of the Army Act read with section 549 of the CrPC. There is no legal bar for trial of the appellants in the Criminal Court in the relevant case, inasmuch as, the offences committed are in the nature of murder simpler. (Per Md Muzammel Hossain J) Major Bazlul Huda vs State 62 DLR (AD) 1. Section 549- Criminal Court and Court Martial A Criminal Court and Court Martial have concurrent jurisdiction to try a civil offence then under Section 94 of the Army Act it is the discretion of the prescribed Officer to decide before which Court the proceedings shall be instituted. If he decides that it should be instituted before a court-martial, then he can direct that the accused shall be detained in military custody. But in the instant case, the prescribed officer has neither exercised his jurisdiction nor instituted the proceedings before the court-martial. Furthermore, the convict appellants did not even raised any objection before the criminal Court during trial. It is only for the prescribed officer to decide as to the forum of trial and, as such, in the instant case, neither the prescribed officer nor the accused appellant challenged the forum of the trial, rather in the Appellate Division, at a belated stage, such a challenge is not tenable in law. Since in the instant case, trial of a civil offence before a criminal Court is found to be legal and valid and, as such, the argument advanced by the defence is not tenable in law. (Per Md. Muzammel Hossain, J) ... Major Md. Bazlul Huda(Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386] Sections 552 & 100—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. Code of Criminal Procedure, 1973 [India] Section 245(2) Criminal complaint is an abuse of the process of Court and is required to be quashed The material on record is absolutely clear that the acquisition was from the funds of Appellant No.1. The complainant has merely alleged that the funds came from his bank account but beyond such allegations no material has been placed on record at any stage. The stand taken by the appellants in their application under Section 245(2) CrPC is quite clear that the shares can be sold in the market and the proceeds can be divided between Appellant No.2 and Respondent No.2. If Respondent No.2 is insisting on having complete ownership in respect of the concerned shares, the matter must first be established before a competent forum. We have considered the material on record through the steps indicated in Rajiv Thapar v. Madan Lal Kapoor (supra) and are convinced that the instant case calls for interference under Section 482 CrPC. Further, from the facts that Appellant No.1 had disowned Respondent No.2 and had filed civil proceedings seeking appropriate orders against them, we are also convinced that the present criminal complaint is nothing but an attempt to wreck vengeance against the father, brother and the brother in law of the complainant. The instant criminal complaint is an abuse of the process of Court and is required to be quashed. Allow this appeal, set aside the orders passed by the Courts below and allow the application for discharge under Section 245(2) CrPC in complaint No.3804 of 2009 on the file of third Additional Chief Judicial Magistrate, Ghaziabad....Sri Suresh Kumar Goyal -VS- State of Uttar Pradesh, [6 LM (SC) 135] Sections 437, 439- Bail- In Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another [3 (2010) 14 SCC 496], it was held that: (i) Whether there was a prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of accusations; (iii) severity of the punishment in the event of a conviction: (iv) danger of the accused absconding or fleeing, if granted bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of repetition of the offence; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger of justice being thwarted by grant of bail. There is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognise the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail. Allow the appeal and set aside the order of the Allahabad High Court granting bail to the accused.... Sudha Singh -VS- The State of Uttar Pradesh, [10 LM (SC) 23] Sections 437, 439- Bail-There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. We are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody's case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity. The appellant is granted bail on conditions that may be reasonably fixed by the trial judge...... Dataram Singh = VS= State of Uttar Pradesh, [4 LM (SC) 110] Section 482- Quashing the complaint In Zandu Pharmaceutical Works Limited and Ors v. Mohd. Sharaful Haque and Another this Court referred to State of Haryana and Ors. v. Bhajan Lal and Ors. and summarized and illustrated the category of cases in which power under Section 482 of the Criminal Procedure Code could be exercised. This court observed and held:- "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." (6 2005 (1) SCC 122; 7 (1992) Supp. I SCC 335] The High Court clearly erred in law in dismissing the complaint, which certainly disclosed an offence prima facie. At the cost of repetition, it is reiterated that it was not for the High Court to enter the factual arena and adjudicate the merits of the allegations. The appeal is, therefore, allowed and the impugned order of the High Court quashing the complaint is set aside. The first respondent shall proceed with further investigation in accordance with law....V. Ravi Kumar -VS- State, Tamil Nadu, [6 LM (SC) 126] Code of Criminal Procedure, 1898 [Pakistan Section 382-B- Benefit of doubt- This appeal is partly allowed in the terms that the sentence of death of the appellant-Amjad Shah is altered to that of life imprisonment under Section 302(b) PPC. The remaining punishment of fine and imprisonment in case of default thereof shall remain intact. He shall also be entitled to the benefit of Section 382-B Cr.P.C. Amjad Shah -VS- The State. [3 LM (SC) 105] Section-561A Section-265C or 241A Cr. P. C. have nothing to do with quashing of a proceeding. Section 561A is an independent inherent power of the High Court Division of the Supreme Court and this power can be exercised in case of abuse of process of Court and for securing the ends of justice and or to give effect to any order under the Code- the learned Judges ought to have entered into the merit of the case before refusing to quash the proceeding. Latifa Akhter & Ors. Vs. The State & Ors. 7 BLT (AD)- 282 Section-561A Nari-O-Shishu Case- In the present case, the facts that have been alleged in the F. I. R. and in the police report i.e. chargesheet might have committed an offence under some other Penal Law but not has committed any offence either under Section 9 (Kha) or Section 14 of the Act- framing of charge against the petitioners under section 9(Kha) and 14 of the Act is not legal and as such the continuation of the proceedings of Nari-O-Shishu case would amount to harassment to the petitioners and that also would amount to an abuse of the process of Court. Younus Ali & Ors. Vs. The State 7 BLT (HCD)-46 Section-561A A convict may invoke the jurisdiction of the High Court Division under Section 561A Cr. P. C. if he can make out a case of Corum non Judice of the trial court or that the facts alleged do not constitute any criminal offence or that the conviction has been based on no legal evidence or otherwise for securing the ends of justice. Shahidul Vs. The State 7 BLT (HCD)-142 Section-561A Charge under sections 406/420 of the Penal Code- In the first information report the petitioner clearly stated that for business purpose he had paid Tk. 5,50,000/- to the accused and he get back Tk. 1,02,628/-nothing was stated in the F. I. R. that the accused respondent denied that he would not pay the balance amount to the petitioner. No allegation of initial deception has also been alleged in the F. I. R. the learned Judges of the High Court Division rightly quashed the proceeding. Md. Rafique Vs. Syed Morshed Hossain & Anr. 5 BLT (AD)-57 Section-561A The petitioner lodged the FIR alleging misappropriation of property by the respondents- Metropolitan Magistrate framed charge against all the respondents under section 408 of the Penal Code and under section 411 against respondent no. 2-The petitioner also filed a money suit against respondent No. 2- There has been claim and counter claim between the parties and admittedly money suits have been filed by each of them which are pending. It can not be said therefore, that the High Court Division was wrong in holding and acting on the premise that the disputes between the parties origin out of a joint work should be settled in the Civil Court and the Criminal Court should not take cognizance of such a dispute- the quashing of the criminal proceeding, in our opinion has not caused any miscarriage of justice in the special circumstances of this particular case. Ansarul Haque Vs. Abdur Rahim & Ors 5 BLT(AD)-118 Section-561A Whether the learned Judge's of High Court Division in disposing of Rule, issued under section 561A of the Com of Criminal Procedure, acted within their legal authority to issue direction upon the authorized officer of Khulna Development Authority to demolish the unauthorized construction in question although the matter is pending before the Chief Metropolitan Magistrate Khulna and awaiting decision in that regard. Held: In Criminal Revision No. 972 1990 dismantlement of the alleged unauthorized construction of building not the subject matter for consideration the learned Judges of the High Division upon taking an erroneous vie the matter clearly misdirected themselves in issuing the impugned unwarranted din in the disposal of the said revision touching upon the very merit of a pending proceeding of an inferior court and as the impugned direction should have expunged in the interest of justice, from the aforesaid judgment in question. Champak Ranjan Saha Vs. Development Authority & Ors 5 BLT (AD)-207 Section-561A A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. Most Rahela Khatun Vs. Md. Abdul Hossain Ors 5 BLT (AD)-22 Section-561 A Prevention of Corruption Act, Section- 5A In the instant case the investigation was held to be the Asstt. Inspector of police without any order of Magistrate and submitted charge sheet which is without jurisdiction as contended by the petitioner's learned Advocate. Held: It appears that the investigation of the present case having been done by a Sub Inspector of Police is not a police report within the meaning of Prevention of Corruption Act, 1947 and as such the cognizance taken on the basis of it by the Sessions Judge, ex officio Special Judge, and framing of charge by the Additional Sessions Judge, (ex officio Special Judge) is illegal and without jurisdiction- The proceeding is quashed. Md. Akhter Hossain Vs. The State 6 BLT (HCD)-234 Section-561A Proceedings of G. R. case pending in the Court of Thana Magistrate under section 366A/109- In the quashing proceeding, the High Court Division is only to see whether mere are materials on record to show that the allegations made in the First Information Report and the charge sheet do in fact constitute an offence and not beyond that -the charge sheet and other statements which are on record are only materials and the stage of taking evidence has not at all arisen. The observation of the learned Judges that “there are evidence" is absolutely erroneous and uncalled for. Ali Akkas Vs. Enayet Hossain & Ors 6 BLT (AD)-135 Section-561A Although quashing of a criminal proceeding at the stage of submission of charge sheet should not be generally permitted but in case unusual facts and circumstances of the case, question of u/s 561A can be allowed. Khatun Vs. Mobasswin Ali & Ors 3 BLT (AD) -74 Section-561A Respondent No. 1 lodged an FIR against petitioner No. 1 who was station master of kaugoan railway station and others alleging, inter alia, that his niece, age about 12/13 years was kept confined at the aforesaid railway station and that after committing rape on her, she had been cast away with the intention of killing her. The officer in charge of the railway police submitted final report whereupon the Upazila Magistrate by his order accepted the same and discharged the accused- the informant being aggrieved by the said order took a revision to the Sessions Judge, who by his order directed the Magistrate to make further enquiry into the matter. The accused then filed an application u/s561A Cr. P. C. in the High Court Division and a Division Bench by its impugned order discharged the rule upon observing that the learned Sessions Judge had correctly set aside the order of the Magistrate wrongly discharging the accused- Held: We are satisfied that the learned Sessions Judge has rightly made the order for further enquiry in the case. His order could not, in any view, be said to be an order without jurisdiction. That being so, it must be said that the application of the petitioners before the High Court Division under section 561A of the Code of Criminal Procedure was wholly misconceived. Md. Abdus Sabur Khan & Anr. Vs. Mr. Nurul Islam Shen & Anr. 3 BLT (AD)-205 Section-561A (a) The FIR, the statements recorded under section 161 Cr. P. C. the charge sheet and the charge are not evidence. No. Comment on those materials is desirable. The court will only see if there are allegations of facts in those materials to connect the accused petitioner with the offence alleged or any offence. Moudud Ahmed Vs. The State 3 BLT (AD)-224 (b) Under Article 58(2) now repealed of the Constitution, the question whether any and if so what, advice was tendered by the Council of Ministers or a Minister to the President shall not be inquired into in any court as contended by the learned Counsel for the petitioner. Held: In our view in this particular case it is premature to invoke Article 58(2) now repealed at this state- being in the facts of the case a mixed question of fact and law, it is not time yet to consider this constitutional question while the document is still not ready for observation with all its factual clothing's- we therefore see no reason to grant leave to consider a question of constitutional importance when the occasion for such consideration has not arisen. Moudud Ahmed Vs. The State 3 BLT (AD) 224 Section-561A Directing holding of Judicial inquiry. From the materials on record it appears that the First Information Reports alleged that the occurrence took place inside the police control room where rape was allegedly committed by police personnel which part was not investigated by the Investigating Officer and it appears that two witnesses were kept under the control of the police and were produced from their custody. In this case there is specific allegation that the alleged offence of rape was committed by a police personnel who allegedly committed rape was let off and respondent No. 2 has been charge sheeted. It is a case of public interest where there is allegation of overt act against the police personnel posted in the Court of the Chief Metropolitan Magistrate and in the interest of transparency and visible administration of justice there is no impediment to a judicial inquiry as ordered by the High Court Division. The High Court Division has not committed any wrong in directing holding of judicial inquiry which will be in addition to the police report already submitted. The State Vs. Seemzahur & another 8 BLT (AD)-69 Section-561A Respondent no. 1 who is an Advocate is neither the informant nor an accused nor a witness in the case. Locus standi—This section provided that the High Court Division in its inherent power may make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure ends of justice. This section emphasized that the Supreme Court in its High Court Division has the widest jurisdiction to pass orders for ends of justice and for that purpose to entertain applications not contemplated by the Code. The inherent power can be exercised for either of the 6 purposes mentioned in the section although the purpose stated are illustrative, exhaustive. The inherent power of the court is undefined and indefinable. It is well set that the paramount consideration exercising power under section 561A of Code of Criminal procedure is that such order will prevent abuse of the process any court or otherwise it would secure ends of justice. We hold that no illegality and wrong have been committed by the High Court Division in exercising its inherent power which has been initiated by respondent No. 1. The State Vs. Seemazahur & Another 8 BLT (AD-69 Section-561A Complainant filed a petition of complaint against the accused appellant under Section-138 of the Negotiable Instruments (Amendment Act, 1994—the subsequent allegations will not save the limitation—the requirement under the law is that the complaint has to be filed within one month of date on which the cause of action arises under clause (c) of the proviso to section 138 impugned proceeding is quashed. M. Anwar Hossain Vs. Md. Shafiul Alam Anr 8 BLT (AD)-90. Section-561A Petitioner has been implicated on the basis the confession of a co-accused—In the supplementary charge sheet complicity of petitioner along with principal offenders found and consequently charge was found by the Tribunal Judge for abetment the offence. It is only at the trial stage the value of the materials on record could be considered. Rahman Vs. The State 8 BLT (AD)-176 Section-561A Case under sections 406/420 of the Penal Code and read with section 156)8) of the Customs Act—allegation that the petitioner purchased a car from the Embassy of South Korea but without paying the Government and taxes, he using the car—Held: If any provision is therein the Customs Act for levying any tax or customs duty upon the petitioner for purchasing the car that may be brought into action under that Act and not the Criminal Law or Penal Code, either under Section 420 or 406 of the Penal Code. Golam Sarwar Vs. The State 8 BLT (HCD)-115 Section-561 A CR. case under Sections-467/468/471— the complaint disclose that the accused petitioners have obtained the disputed document in the year 1978, as stated above and they have also got a deed of rectification of the original sale deed in the year, 1990 and in the said Civil Suit the complainant tried to become a party. But after failure to do so, he did not take any further step whatsoever in the higher forum to get him added in the Civil Suit and he himself also did not file any Civil Suit. Another very important aspect of the case is that the complainant himself has. obtained a document of purchase in respect of some portion of the case land on 11.02.1990. So he is a later purchaser and the document of the accused persons being of 1978, it is an earlier one —Held : Under the aforesaid circumstances as we understand, only civil suit can resolve this legal conflict finally effectively and we find prima facie that the criminal liability cannot be pushed upon the accused-petitioners and consequently, trial if held against the accused-petitioners it will be an abuse of process of law and Court. Moulana Abdul Hakim @ Abdul Makim &Ors. Vs. Md. Siddiqur Rahman Advocate & Anr. 8 BLT (HCD)-207 Section-561A In a criminal case firstly, any allegation whether in the FIR or in the charge sheet, must constitute an offence within the meaning of Code of Criminal Procedure, secondly, the allegation must be based on materials on record and not on mere surmises or suppositions. The process of law must not be used as the engine of harassment. If it is found to be so abused it will be imperative on the part of the High Court Division to interefere and quash such proceedings in exercise of its inherent jurisdiction. Md. Shokrana Vs. The State 8 BLT (HCD)-299 Section 561A- High Court Division shall have the discretion to award costs against a party under a very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the specific provisions of the Code to meet the following situations: (i) to prevent abuse of the process of any Court or (ii) to give effect to any order passed under the Code or (iii) otherwise to secure the ends of justice. Costs may also be given to meet the litigation expenses or can be exemplary to achieve the aforesaid purposes. Khondker Latifur Rahman =VS The State, [4 LM (AD) 383] Section 561A- For quashing a proceeding under section 561A of the Code, the High Court Division has scope only to see whether there are materials on record showing that the allegations made in the FIR and the charge sheet, constitute an offence. If there be any such material the proceeding shall not be quashed, in that case the trial Court will decide the case on the basis of evidence to be adduced by the parties. This Division in the case of Ali Akkas vs Enavet Hossain, reported in 17 BLD (AD) 44 held to bring a case within the purview of section 561A of the Code for the purpose of quashing a proceeding, one of the following conditions must be fulfilled: (I) Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused; (II) Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court; (III) Where there is a legal bar against the initiation or continuation of the proceeding; (IV) In a case where the allegations in the FIR or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and (V) The allegations against the accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.' .....Begum Khaleda Zia =VS= State, [4 LM (AD) 359] Section 561A- On perusal of the statements made in the FIR and the charge sheet it appears that there are some materials which may constitute offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 conside-ring which the High Court Division held that there is clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947'. Begum Khaleda Zia =VS= State, [4 LM (AD) 359] Section 561A- High Court Division cannot exercise its extraordinary power to quash the proceedings under 561A of Cr.PC- It appears that the High Court Division has quashed the FIR filed by the Durnity Daman Commission against the respondent. It is our consistent view that until and unless the Court takes cognizance of the offence there is no legal proceedings pending before any Court of law and therefore, the High Court Division cannot exercise its extraordinary power to quash the proceedings. That the High Court Division erred in law in quashing the proceedings of the case. We find merit in the submission of the learned Counsel. The judgment of High Court Division is set- aside. The Durnity Daman Commission is directed to proceed with the ease in accordance with law. Durnity Daman Commission Vs. Engineer Mosharrf Hossen & 2 another, [1 LM (AD) 480] Section 561A-A criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused- The Appellate Division observed that High Court Division came to finding that no charge was framed in this case as yet and that there was scope for the petitioners to agitate the grievances at the time of framing of charge under section 241A of the Code of Criminal Procedure and that if the contentions of the petitioners were found to be correct they might get relief. The High Court Division noted that a criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused. The High Court Division came to a finding that in the instant case, the aforesaid requirements are absent inasmuch as from a bare reading of the petition of complaint (Annexure-A) it appeared that the allegations made therein clearly constituted prima facie offence under sections 420/406/468 and 109 of the Penal Code. ......Md. Rafiqul Islam & others =VS= Md. Fakruddin & others, [1 LM (AD) 503] Section 561A- Taking into consideration the facts and circumstances of the case, including the fact that the criminal proceedings against all the other co-accused, including the borrowers who are alleged to have been given loan by the bank, upon connivance of other bank officials and the appellant, having been quashed the Appellate Division is of the view that further proceedings against the appellant will be a futile exercise. Moreover, the occurrence having taken place more than 25 years ago, proceeding against the appellant is liable to result in time and expense leading to nought. .Md. Shafiuddin =VS= The State, [1 LM (AD) 527] Section 561A- Considering the facts and circumstances we do not find that the learned Additional Metropolitan Sessions Judge, 2nd Court, Dhaka has committed any wrong or illegality in setting aside the impugned order dated 29.07.1999 passed by the learned C.M.M., Dhaka dismissing the case and as such the High Court Division also did not commit any wrong or illegality in upholding this judgment and order passed in Criminal Revision No.906 of 1999......Md. Shahidul Islam =VS Shopon Bepari & another, [1 LM (AD) 530] Section 561A- The Court cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting the society and the mankind- Applications invoking section 561A of the Code should not be so readily entertained, especially when the end result would be to delay and defeat the ends of justice. In the instant case there are specific allegations against the accused. Delaying the trial, particularly on technical ground, results in the erosion of public confidence in the justice delivery system. We do not find any infirmity or illegality in the judgement of the High Court Division calling for any interference by this Division, hence, the criminal petition for leave to appeal is dismissed. ...Solim Ullah(Md.) =VS= Deputy Commissioner (DC), Chattogram, [7 LM (AD) 285] Section 561A-Secure justice- The provision of the section 561A of the Code only provides following jurisdiction upon the High Court Division which can be exercised by it to achieve purposes mentioned herein, namely, (a) to give effect to any order under the Code or (b) to prevent the abuse of the process of any Court or (c) to secure the ends of justice. The powers vested under this section are extra-ordinary in nature which are required to be exercised with a view to secure justice....Khalilur Rahman=VS= Md Alauddin Akon(Bir Muktijoddha), [9 LM (AD) 543] Section 561A-Extra ordinary power- It is an extra-ordinary power it should be exercised sparingly, that, is to say, in rarest of the rare cases. So, the High Court Division should guard while exercising this power that the principles are applied in the facts of the case. This Division has given guidelines while exercising the extra- ordinary powers in Abdul Quader Chowdhury vs State, 28 DLR (AD) 38 and those guidelines have been reiterated in subsequent cases in Bangladesh vs Tankhang Hock, 31 DLR (AD) 69; Ali Akkas vs Anayet Hossain, 17 BLD (AD) 442 BLC (AD) 16. The High Court Division cannot exercise its extra-ordinary powers unless the applicant has accompanied a copy of the FIR, the police report and the order taking cognizance of the offence by the competent e court if he comes out with a case that the allegations do not constitute any offence, and if the applicant challenges his conviction on the ground that the conviction is based on no legal evidence, he is required to accompany a copy of the judgment along with the petition for satisfying the High Court Division that the conviction is based no legal evidence. Apart from that there is no scope on the part of the High Court Division to exercise its ordinary powers. extra ...Anti- Corruption Commission VS Shahjahan Omar (Md), [9 LM (AD) 281] Section 561A-A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution- This section has given the widest jurisdiction to the High Court Division to exercise of its inherent power, to secure the ends of justice, to prevent the abuse of process of the Court or to give effect to any order under this Code. Therefore, the inherent power of the Court must be exercised cautiously and judiciously. Pakistan Supreme Court in the case of State-Vs-Monzoor Ahmed reported 18 DLR (SC)444 that "Plea of alibi without calling evidence in support of it is no plea at all". "A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case". This Division has no hesitation in saying that the quashing of proceeding was illegal. Therefore, the impugned judgment and order of the High Court Division cannot be sustained in law and hereby set aside.... Deputy Commissioner, Gopalgonj =VS= Kamrul alias Kamruzzaman, [10 LM (AD) 390] Section-561A-Quashment Moudud Ahmed has not converted the property for his own use. The alleged agreement for sale was executed in favour of Monjur Ahmed, who is a distinct person and not a member of his family. Though the petitioner has challenged the order of taking cognizance of the offence, we noticed that the initiation of the proceeding itself is an abuse of the process of the court and no fruitful purpose will be served if we allow the criminal case to proceed with. The proceeding, is therefore, liable to be quashed. RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1] The Code of Criminal Procedure, 1898, Section 561A We also failed to see any logic behind the argument of Mr. Amirul Islam that in order to exercise the power of super- intendence and control over the Subor- dinate Courts and Tribunals as mandated in article 109 of the Constitu- tion, the High Court Division can really exercise its power of judicial review and thus, interfere with the proceedings of the Subordinate Courts and Tribunals. It is expected that the im- pugned proceedings challenged in the writ petitions having arisen out of the petition of complaint and the FIR by an individual as well as by a designated Government official shall be dealt with by the concerned Magistrate/Court in accordance with the provisions as laid down in the Code. In case the concerned Magistrate/Court does not deal with the cases in accordance with law as pro- vided in the Code or the accused are not treated in accordance with law, they shall have every right to take recourse to the provisions of the Code inclusive of section 561A thereof as observed in the impugned judgments. So, the question of superintendence and control by the High Court Division under article 109 of the Constitution over the Magistrates where the impugned proceedings/cases are pending by way of interference through judicial review does not arise at all. TaeHung Packaging (BD) Limited vs. Bangladesh (Md. Muzammel Hossain CJ) (Civil) 10 ADC 361 Section-561A Whether High Court Division can record an order of compounding the offence which is non compoundable, for securing ends of justice. Held : The Case was registered under Section-366A of the Penal Code, a non-compoundable offence. We have noticed that in the FIR the informant stated that his daughter was 17 years old and was a student of second year of Higher Secondary Certificate. In course of investigation of the case, the victim made a statement under Section-164 of the Code of Criminal Procedure wherein she stated that she was 18 years old. In the Kabinnama, her age has been mentioned as 19 years old. The occurrence took place of 16.11.1993 and at present, the victim is about 25 years old. Considering all these aspects, we are of the opinion that victim Nasima Aktar was not below 18 years old at the time of occurrence and therefore, the allegations made in the FIR do not attract Section-366A of the Penal Code. We have also noticed the statement of the informant made before us that his daughter Nasima Aktar is now an expectant mother. Since the informant, father of victim, has accepted the marriage condisering the welfare of his daughter, although the offence charge in non-compoundable, we feel that the ends of justice will be secured if we accept the prayer made by the informant and record an order of compounding the offence. On the contrary, if we reject the prayer entail unnecessary harassment to the parties. Law encourages composition of offences and in the instant case we feel it necessary for carrying out the other provisions of the Code and also for doing justice for prevention abuse of the process of the court by invoking the inherent powers of the court —Accordingly we accept the application filed by the informant for compounding the offence and it is allowed for the interest of justice. Shajedul Alam Chowdhury Vs. The State 8 BLT (HCD)-256 Section-561 A Complainant's case under Section 313/109— complainant made an application to the Magistrate for taking cognizance but the Magistrate rejected that prayer—the] learned Sessions Judge allowing the criminal revision setting aside the order of the Magistrate and directed to taka cognizance against the accused petitioners -| Held: The order of the Sessions Judge directing to take cognizance is not correct one and this portion of the order is liable to be set aside and qushed. A Rou f& Ors. Vs. The State & Anr. 8 BLT (HCD)-303 Section-561 A In the instant case on receipt of the petition of complaint the learned Magistrate examined the complainant on oath under Section-200 of the Cr. P.C. and thereafter in exercise of his powers under Section-202 of the Code directed an investigation by the police. Only on receipt of the report by the police he came to the conclusion that the offence as alleged in the petition complaint is triable by the Special Tribunal under the Special Powers Act —Held : this case there was no illegality irregularity on the part of the learned Magistrate in taking steps under Section 200/202/190 of the Code on receipt of the petition of complaint and since he sent the records of the case along with the police report to the Special Tribunal, the Special Tribunal also rightly took cognizance of the offence under Section-27(l)(2) of the Special Powers Act—the petition under Section-561A of the Code of Criminal Procedure is misconceived. Golam Rahman Vs. Md. Bazlur Rahman & 8 BLT (HCD)-258 Section-561 A and Representation of the People's, order 1972 Article-74 read with General Clauses Act, 1897 Section-6(c) It is on record that the election was held on 27.02.1991. The time limit for submission of the return was within 65 days from the date of publication of the result of the said election which the petitioner did not comply. But by subsequent amendment the time limit for submission of the return of election expenditure was made 15 days in place of 65 days and punishment was also enhanced to seven years of imprisonment giving effect to the said amendment on and from 6th of January, 1991 although the amendment has been made much later by the Act No. 10 of 1991—Held : In our view the issuance of notice and service of the same upon the Petitioner for submitting the report and directing to show cause was redundand when the law itself very specifically provides time limit for submission of report within 65 days—the petitioner should be tried under the law which was prevailent at time of commission of the alleged offence but not under the amended law. Saidur Rahman Khan Mohon Vs. The State 8 BLT (HCD)-262 Section 516A-Custody of property pending trial for theft and cheating-Jurisdiction of civil Court over such property-Order passed by the criminal Court giving custody of a vessel, the subject-matter of the criminal case, to the local Upazila Chairman was subject to revision and the application under section 151 CPC made before the civil Court by the complainant as the plaintiff in his suit for injunction is misconceived. Mitali Shipping Lines vs Bhuiyan Navigation Agency 44 DLR 230. Section-516A Interim custody of property — under this section the Magistrate has no power to investigate or to decide the ownership of rival claimants of the property. The only consideration is of possession of the property at the time of commission of the alleged offence, has to be gone into and decided before passing an order for the custody of the said property. Where the question of the custody of property like vessel in the present case, we are of the opinion that Magistrate instead of entering into investigating the title of the rival claimants, it is his duty to decide expeditiously who is the person prima facie entitled to possession thereof and handover its possession to him for avoiding great loss that has sustained when it was kept unused, for sustained when it was kept unused, for ensuring the vessel in the same condition as it was at the time of its seizure and to produce before the court as and required. We are further of the opinion that no property should be given to a person who is not entitled to its possession at the time of its recovery and who has not committed any offence in respect thereof to make its possession unlawful. Md. Omar Ali. Vs. Abdul Malek & Ors. 9 BLT (HCD)-347 Section-561A After submission of charge sheet complainant filed a Naraji Petition — complainant petitioner is the full brother of the deceased and he claims that he along with his sons are eye witnesses of the occurrence —Second proviso to sub-section(l) and proviso in sub section 2A of Section 202, where it appears to the Magistrate upon receiving the complaint that the offence is exclusively tradable by the Court of Sessions, he may postpone the issue of process and he shall call upon the complainant to produce his witnesses and examine them on oath for ascertaining truth or falsehood of the complaint. But in this case, the learned Magistrate has not followed this mandatory provision of law and rejected the petition on an erroneous ground which is not sustainable in law. The learned Magistrate even did not register a complaint case after receiving the Naraji petition which was obligatory on his part to register the same and ought to have proceeded with the case as a complaint case. There is, therefore, non application of judicial mind in dismissing the Naraji petition—Impugned order is hereby quashed. Abdur Razzaque Vs. The state 9 BLT (HCD)-263 Section-561A Allegation under Section 406/420 of the Penal Code—Held : We have perused the F.I.R we find from the F.I.R that the accused petitioner took loan of Tk. 1,64,000.00 from the informant in 3 installments as loan for his business purpose. There is nothing in the FIR that at the time of taking loan in the petitioner made any promise with the complainant that he will return the money within a specific time or of date and we also do not find any allegation of inducement for getting the loan money from the complainant. Rather we find from the FIR that the accused took the money from the informant as loan for business purpose as such in the allegation we do not find any ingredient of instrustment or that the money was taken with any specific promise or inducement. Thus in the absence of such definite allegation it cannot be held that taking of money as loan and subsequent failure or refused by itself shall constitute criminal offence. Md. Abdul Mannan Sarker Vs. The State 9 BLT (HCD)-417 Section-561A Sections 109/111 of the Penal Code—it is well settled principle that a person who abets the actual perpetration of the crime at the very time when it is committed is a 'principal of the second degree, under Section 109 the Penal Code, This is, applicable to the accused importer. There is however, no distinction between, 'Principal in the first degree' and 'principal in the second degree’ Under Section 111 of the Penal Code an abettor is liable for a different act if that was probable consequence of the abatement is applicable to the accused guarantor. Islami Bank Bangladesh Ltd. Vs. Moham Habib & Ors. 10 BLT (HCD)-65 Section-561A read with Nari-O-Shishu (Bishesh Bidhan) Ain. 1995 Proceeding is not legally maintainable provisions of Nari-O-Shishu Ain is enacted for special cases in special circumstances, in contradiction to general rules of the law laid down as applicable generally to all cases with which the general law deals and therefore is a special law, It must be given prospective operation. For giving retrospective construction to a statute its language imperatively and clearly require so. This enactment came into force on 17.07.1995 and the occurrence of the case took place on 12.05.1995. Therefore it cannot be said that this case will be governed by Nari-O-Shishu Ain, 1995 with retrospective effect. Abul Kalam Khan Vs. Reaz Morshed & Anr. 10 BLT (HCD)-104 Section-561A The Complainant-Opposite Party defamed for the publication felt defamed for the publication of a rejoinder made by public Relation Department, Bangladesh Krishi Bank which was published in Daily Janakantha to a report by a reporter of Janakantha—Held : In the Rejoinder creation of the two Power of Attoryneys through acts of forgery and endeavour on the part of sponsor of Salt Refinery Industry to take loan from Bank been stated and the said statements by way of Rejoinder had been published in the paper on good faith for the protection of interest of Bangladesh Krishi Bank and that also, for public good. Ninth Exception to Section 499 of The Penal Code is very much attracted and the Rejoinder satisfied Ninth Exception and the publication of Rejoinder does not fall within the definition of defamation as given in Section 499 of the Penal Code. Bangladesh Krishi Bank Vs. The State 10 BLT (HCD)-112 Section-561A There is no legal bar in entertaining two different cases filed by two different persons in respect of the same offence. In that circumstances the procedure is that both the cases are to be tried simultaneously by the same court— the learned Magistrate has committed illegality by not taking any action on the complaint in respect of the same offence. Most. Panbilashi Nessa Vs. The State & Ors. 10 BLT (HCD)-380 Section-561A In the Rejoinder no statement had been made nor any accusation has been mounted against Complainant-opposite party nor it was stated that the Complainant opposite party had been the author of all the acts of forgery in respect of creation of Power of attorneys and endeavours of taking loan on the basis of Power of Attorneys. The Rejoinder had been made by Public Relation Department, Bangladesh Krishi Bank and the petitioner as Managing Director of the Bank at the relevant time cannot be, also personally posted with the liability for the, said publication. On this, also, the proceeding against the petitioner cannot be allowed to be continued. S.A Chowdhury Vs. The State 10 BLT (HCD)-381 Section-561A Charged under Section 25B(2) of the Special Powers Act—Held: We have perused the FIR wherefrom it is evident that the items seized by the police personnel from the possession of the petitioners are nothing but be of any use other than personal by the petitioners or by the members of the family of the petitioners and it further appears that the seized goods, under no stretch of imagination can be conceived to be the goods imported for any business or commercial purpose. It further appears that the petitioners had made positive assertions in their application under Section 561A of the Code of Criminal procedure to the effect that they have traveled to India with valid travel document and had crossed the border with those goods upon compliance of all the legal formalities both by the Customs and Immigration authorities at Beanpole — the instant proceeding amount to be an abuse process of the court which is liable to be quashed for securing ends of justice. Sanker Saha & Ors. The State 10 BLT (HCD)-397 Section-561A Principles exercising inherent jurisdiction The expressions "abuse of the process of law" or "the ends of justice" do not confer unlimited jurisdiction upon High Court Division and the alleged "abuse of the process of law" and "the ends of justice" can only be secured in accordance with law including procedural law and not otherwise. Further inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 561A of The Code in cases where there are no express provision empowering high Court Division to achieve the said object. Dawlat Shah Vs. The State 10 BLT (HCD)-460 Section-561A Complaint under Section 26 of the Employment of Labour (Standing Order) Act, 1965—Charge under Section 55 of the Industrial Relations Ordinance, 1969—It appears that the Labour Court directed the accused to pay the benefits without specifying the amount of benefits entitled by the complainants. According to the accused, they were given entire termination benefits on calculation — Held : The complainants may take recourse to such remedies when the entitlement of complainants are ascertained, Since the Labour Court passed general order conferring termination benefits, it has no Jurisdiction to determine the quantum under section 26 of the employment of Labour (Standing orders) Act, 1965,. It can punish an offender for refusal or failure to comply with a definite order of ascertained sum. The complainants in the instant cases instead of proceeding under Section 26 of the Employment of Labour (Standing Orders) Act, which is the only provision applicable in their cases made the complaints under different sections including Section 55 of the Industrial Relations Ordinance which is altogether different and the said provision is not at all applicable in the face and circumstances the case. Even, if it is assumed that proceedings were legally initiated under Section 55 of the Industrial Relation Ordinance, although it were required to be initiated under Section 26 of the Employment of Labour (Standing Order) Act, 1965, for the reasons as discussed above, we are of the opinion that the allegations made in the complaint do not disclose an offence either under Section 2(9 of the Employment of Labour (Standing Orders) Act or under Section 55 of the Industrial Relations Ordinance, 1969. Daily Banglar Bani Vs. M. Abul Kashem Ors. 11 BLT (HCD)-128 Section 561A Allegation U/S 3 & 4 of the Explosive Substance Act — it appears that against F.R. T the informant filed Naraji petition against the accused petitioner no. 1 Md. Akhter and accused petitioner No. 5 Mister and 2 others namely Md. Abul and Alam in spite of that the learned Special Tribunal took cognizance against the accused petitioner Nos. 2-4 and 6-8 against whom the informant had no allegation in the Naraji petition — Held : In this view of the fact, think that the ends of justice would be met if the order of taking cognizance by learned Special Tribunal is modified striking out the name of the accused petitioner 2-4 and 6-8 from the impugned order. Md. Akhter & Ors The State & Ors. 11 BLT (HCD)-77 Section-561A Ground of delay -We are of the view a quashing of proceedings of criminal case the ground of delay is made general Shall certainly destroy whole concept of admiinistration of criminal justice and finally will lead to anarchy. In this view of the matter we are of the view that the High Division was in serious error in ordering the delay as the ground for quashing of the proceedings of the criminal case. Govt. of Bangladesh Vs. Md. Amjad Ali Mridha & Ors 12 BLT (AD)-190 Section-561A Proceedings under sections 420/406 of the Penal Code— The whole allegation as depicted in the complaint is an out outcome ofa typical partnership business transaction which is absolutely civil in nature and as such continuation of criminal proceeding against the petitioner on that score would certainly tantamount to abuse of court and law and as such it should be quashed. Dr. S. Asraf Ali Vs Md. Ahsan Habib and Ors 12 BLT (HCD)-252 Section-561A Charged u/s 409/109 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947—We are of the view that when the Tender Committee forwarded the matter to the Ministry with the opinion that the first lowest Tenderer stood disqualified for non-fulfillment of the condition of the Tender schedule. the Respondents (the Minister and Secretary) did not commit any offence, agreeing to issue work order to the second lowest Tenderer, more so, after bargaining the rate being fixed to 1.49 US dollar in lieu if 1.53 US dollar quoted by the second lowest tenderer previously. From the First Information Report it appears that contents even if accepted in its entirety no prima facie case is disclosed and as such we are of the view that the High Court Division did not commit any illegality in passing the impugned judgment and order quashing the proceeding. The State Vs. Mohammad Nasim & Ors. 13 BLT (AD)161 Section-561A in the instant case the First Information Report was lodged on 7.9.1995 and the Police report (charge sheet) has been submitted on 12.12.1995 i.e. after 17.7.1995 the date of repeal-Held; In the premises we direct that the accused petitioner is required to be tried under the provision of Nari-O-Shishu Nirjatan (Bishes Bidhan) Ain, 1995 and not under the provision of repealed law i.e. the Cruelty to Women (Deterrent Punishment) Ordinance, 1983. Abul Hashem Vs. The State 13 BLT (AD)-184 Section-561A The F.I.R. on the face of it discloses a criminal offence and the case is still under investigation. So it cannot be legally interfered with at this earlier stage and the proceedings cannot be quashed. The State Vs. Md. Omar Faruque and Ors. 14 BLT (AD) 62 Section 561-A Allegation under Section 295A of the Penal Code - framing of charge against the accused petitioners under section 295A of the Penal Code on an application by an individual is not sustainable in law and as such the proceeding against the accused-petitioners under section 295A of the Penal Md. Sahabuddin & Ors. Vs. MM. Nurul Huda & Ors. 14 BLT (HCD)-130 Section 561A Suo Moto Rule issued on 29.8.2004 on a news report dated August 27, 2004 captioned published in daily Pratham Alo-“???? ????? ????? ????? ??? ?? ????” ??????? ???? ????????? ???!- according to the finding of the Tribunal itself impugned order for discharge of the accused Officer-in-Charge obtained from the Tribunal fraudulently by suppressing the finding and decision of the High Court Division dated 13.4.2004 in Criminal Miscellaneous Case No.3202 of 2004 is prima facie unlawful, an abuse of the process of the court and not sustainable. The State Vs. Md. Zahangir Alam 14 BLT (HCD)-156 Section 561 - A A proceeding can be quashed only on reference to the FIR/complaint, nor on any other materials. If the FIR or petition of complaint do not fix the accused with the offence disclosed in the FIR then the accused need not wait till submission of the police report, quash of the same. Md. Hasan Vs. State 14 BLT (HCD)-195 Section-561-A Release of a detenu from illegal detention Since there is specific provision engrafted in section 491 of The Code Court for the redress of the grievance of petitioner he could not have invoked this Court's inherent jurisdiction postulated in section 561A of The Code in challenging the detention of his father Dr. Mohammad Asadullah AI-Galib and in having a direction for release of his father from the custody. The release are untenable in law and those cannot be granted. A.A. Sakib Vs. The State 14 BLT (HCD)-402 Section-561A The prayer in respect of recording a direction upon opposite party to allow the petitioned and his mother to meet and discuss with Dr. Mohammad Asadullah Al-Galib and allow Dr. Mohammad Asadullah Al-Galib to sign Vokalatnama and to consult with his advocate to be appointed by him in connection with cases herein he is undo indictment is accepted and allowed. A. A. Sakib Vs. The State 14 BLT (HCD)-402 Section -561A In the instant case, though no cognizance was taken by the sessions judge but he has initiated a new proceeding being Criminal Miscellaneous case No. 475 of 2002 which is malafide, illegal and without jurisdiction not sustainable in law. Md. Nurul Amin Vs. Zahirul Islam & Ors 14 BLT (HCD)-462 Section -561-A Since the application under section 561A was filed when other remedy was available hence the instant rule is not maintainable a contended by the learned Counsel of the investigating officer -Shah Alam Babu who appeared before the trial court and, having been convicted, filed the appeal under the name of Sundar Babu alias Shah A Babu, we find that the evidence manifestly against his being involved in the incidence, in particular since the informant and the other eyewitnesses categorically stated that the person standing in the was not the person accused by them in case. P.W.5, who is an independent uninterested eyewitness, did not identify him in the dock although he was very present at the time when PW5 deposed Court. We find no other evidence, material to connect the person standi the dock, who made his appearance in the name Sundar Babu alias Shah Alam Babu, with the murder of Gazi Liakat Hossain. As such we are left with no other alternative but to find that the person standing in the dock, who faced the trial as Sundar Babu alias Shah Alam Babu and was convicted as Sundar Babu, is not the person who was accused by the informant and hence he is to be relieved of the charges leveled against him. The State Vs. Shahid Javed Gaira @ Garib Miah & Ors 14 BLT (HCD)-502 Section-561A The High Court Division quashed the proceeding holding the complainant petitioner, a private party, lodged the complaint before the Court of Chief Metropolitan Magistrate Dhaka against the accuused respondent No. 1 under sections 471 and 467 of the Penal Code alleging that he, along with others, have forged the affidavit dated 28.6.1999 and filed the same in the Title Suit No. 171 of 1999 of the 6th Court of Assistant Judge, Dhaka which has been marked as exhibit No.3 in the said suit and since the petition of complaint/ First formation Report contains allegations of filing and use of forged document in the proceedings of a suit, the initiation of the criminal proceeding for forgery at the instance of the complainant petitioner without taking recourse of the procedure provided in section 195(l)(c) of the Code of Criminal Procedure is barred -Held; We are of the view that the High Court Division on it consideration of the materials on record and considering the provision of section 195(l)(c) of the Code of Criminal Procedure arrived at a correct decision. Kazi Forhad Hossain Vs. Md. Golam Mustafa Sarwar 15 BLT (AD)-233 Section-561A The exercise of inherent power under section 561A of the Code of Criminal Procedure should be limited to the objects detailed in the section itself but the same is not, appears to be exhaustive but remained to be undefined and indefinite and must be exercised with utmost caution lest under the garb of exercise of inherent jurisdiction, a great injustice is not perpetuated at the initial stage of the case when as a matter of fact, there is no evidence before the Court in the case except certain allegation. The Court is obviously could not shut its eyes to the apparent infirmities in the case and as such in order to prevent abuse of the process of the Court or otherwise to secure ends of justice, such exercise of jurisdiction becomes imperative in order to avoid any unnecessary harassment to the accused under the garb of dispensation of justice. But in doing so the Court could not enter into merit as to the allegation at the initial stage soon after the investigation unless the illegality is apparent on the face of the allegation which do not constitute an offence or there is legal bar to proceed. The State Vs. Md. Mominullah (Mohan) 15 BLT (AD) 251 Section-561A Allegation under Sections 406/420/34 of the Penal Code -the appellant being admittedly the Managing Director and a director of the company of which the complainants are directors and in the course of official business alleged to have issued cheques which amount was allegedly misappropriated by the appellants, could not be legally termed as misappropriation or breach of trust of the fund of the company for a criminal prosecution under section 406/420 of the Penal Code and that the remedy, if there be any is one of accounting and mense profit for which a civil suit for accounts is the appropriate remedy and hence the prosecution of the appellant under section 406/420 of the Penal Code is not maintainable parse and accordingly, is liable to be quashed -Held; the impugned proceeding is hereby quashed. The complainant party including the company may proceed against the accused-appellants for the allegations in the petition of complaint in the appropriate form and in accordance with law. Md. Anarul Islam & Ors Vs. The State & Anr 15 BLT (AD)-269 Section-561A To prevent the abuse of the Process of the court and to secure the ends of justice. Allegation under Sections 409/109 of the Penal Code read with section 5(2) of Act 11 of 1947 and the case was under investigation - Facts are that the respondent took the money for fifty one bore holes relating to topographic survey by bill Nos. 1 and 2 respectively dated 11.03.1994 and 19.05.1994 and she took the same amount of money for the same work by bill No.3 dated 30.06.1994. -Respondent's case is that bill Nos.1-3 are all running bills and in bill No.4, the respondent clearly stated that inadvertently sub-soil testing was included in bill No.3 and regretted for the inadvertence and further requested the authority to adjust the amount from bill No.4. The learned Counsel further submits that after completion of entire work of the project when the final bill would be submitted, the authority (IPSA) would be at liberty to adjust/deduct any excess amount if paid to the respondent in making payment against running bills -Held we are of the view that no prima facie case was made out against the respondent in the First Information Report and the District Anti-Corruption Officer, Gazipur without examining the necessary papers of authority (IPSA) specially bill No.4 d 29.10.1994 lodged the first information re on 31.12.1994 -we consider it a fit case interfere at the stage of police investigation prevent the abuse of the process of the co and to secure the ends of justice. The State Vs. Mrs. Lailun Nahar Ekram 15 BLT (AD) 185 Section -561A Allegation under Section 406/420 of Penal Code -Held; in absence of a definite allegation of inducement for getting money from a particular source or person and refusal to repay the same, the proceeding of the case is an abuse of process of the Court and also harassment to the petitioner. Md. Omar Faruque Vs. The State & Anr 15 BLT (HCD) 318 Section 561 A Credibility of evidences are beyond the reasonable doubt -the Petition of complaint was lodged after 2 and 1/2 months and there was marriage and the doctor found that there was no sign of rape and she is habituated with sexual intercourse. Under these facts a circumstance we find reason to interfere into the judgment and order of conviction dated 1.7.2002 passed by the learned Nari-O-Shishu Nirjatan Damon Tribunal. Chandpur in Nari-O-Shishu Nirjaton Case No. 38 of 2001 and we find cogent reason to set aside the conviction and sentence. Firoz Chokder Vs. The State 15 BLT (HCD)85 Section 561(A) Allegation U/S 406/420 of the Penal Code on perused of the petition of complaint there is specific reference of the award the Arbitration Board –Held: on perusal of the award, we find that the Board did not come to any finding that the accused petitioner mis-appropriate Tk. 86,00,232/-rather from the decision arrived at by the Arbitration Board we find that the Board directed both the parties to settle the respective claims after accounting. When claims of the parties are to be settled on the basis of accounting, the liability shall be a Civil liability. In the instant case, as we find that both the parties submitted their claim before the Arbitration Board, decision of the ^Arbitration Board is binding of both the parties. Any failure on the part of a party will be a civil liability and cannot be considered as a Criminal offence. So, we find that continuation of the proceedings shall be abuse of the process of the court and as such the same is liable to be quashed. Abu Zafar Tipu Vs. Syed Abu Siddique 15 BLT (HCD) 93 Section-561A read with Section-367 and 369 In the instant case in a revisional application U/S 561A of Cr. P. C. being Criminal Misecellanceous case was taken up for hearing by the High Court Division none appeared and the same was discharged — Held: The proper forum against such judgment and order would have been an appeal before the Appellate Division and not an application under Section 561A of the Code of Criminal Procedure. Md. Mozammel Hoque Vs. Sayedur Rahman & anr. 11 BLT (AD)-9 Section 561A read with 498 I view of the materials on record order of High Court Division enlarging the amendent, Saber Hossain Chowdhury son of Hedayet Hossain Chowdhury of 5, Paribagh, Police Station Ramna, District­ Dhaka on ad-interim bail calls for no interference by this Division and accordingly the order of the High Court division enlarging the respondent on ad-interim bail is maintainable. The State Vs. Saber Hossain Chowdhury 11 BLT (AD)-45 Section-561A Read with Anti-Terrorism Ordinance, 1992 Sections-4 and 2(2) Ingredients of "terrorism offence" being prima facie present in the allegation of damage to the transport vehicle (Bus), quashment of the proceeding cannot be sought for. Shahabuddin & Ors Vs. The State 2 BLT (AD)-13 Section -561A read with Bangladesh Legal Practitioners and Bar Council Order, 1972 It appears that the learned sessions judge on receipt of the complaint petition from the former public prosecutor Mr. Md. Zahirul Islam opposite party No. 1 and after taking evidence on oath of the said complainant he has initiated criminal Misc. case No. 475 of 2002 on 1.8.92 and directed the accused petitioner to submit attested copies of the educational certificate since from S.S.C. to LL.B Examination which he is not authorized to do under the provisions of section 32 of Bangladesh legal practitioners and Bar Council order, 1972. Md. Nurul Amin Vs. Zahirul Islam & Ors 14 BLT (HCD) 462 Section 561-A read with Narcotics Control Act, 1990 Section-16(9) The Provision of Sub-section (9) is intended to grant immunity to addicted person under the treatment of the physician or Madaka Sakti Niramaya Kendra for treatment or surrendered by father, mother or head of the family or person on whom he is dependent is entitled to immunity from the charge under section 9, 10 and 22 of the Act for use of narcotics and no complaint shall be instituted against him in any court. Md. Didarul Alam Vs The State 14 BLT (HCD)181 Section-561 A, 4(h), 200 Without examining the complainant the Magistrate directed the O C to investigate the case treating the petition of complaint as FIR and the police submitted charge sheet after investigation. The case not being proceeded with as a complaint case and charge sheet being submitted by the police on the basis of F I R it cannot be said to be illegal or without jurisdiction and question of quashment of proceeding for non examination of the complainant under section 200 Cr.P.C does not arise. Yakub Ali Vs. The State 3 BLT (AD)-121 An Abuse of the Process of the Court We find that the complainant- respondent No. 2 being the uncle of the two minors of appellant No. 1 failed to be the guardian of the minors. In order to take revenge the complainant has started this criminal proceeding against a helpless widow by alleging, what has already been decided to be false, that she remarried and by abusing the process of court appellant No. 1 and others are being harassed and humiliated. Latif Akhter & Ors. Vs. The State & Ors. 7 BLT (AD) -282. Code of Criminal Procedure [V of 1898] Section 561A read with Penal Code [XLV of 1860] Sections 467/468/469/471/472/420 and 34 The plenitude of power under section 561A of the Code of Criminal Procedure by itself, makes it obligatory for the High Court Division to exercise the same with outmost care and caution. Such inherent jurisdiction may be exercised, namely, to give effect to an order under Cr.P.C.; to prevent abuse of the process of the court, and to secure the ends of justice. The width and the nature of the power itself demands that such inherent powers are to be exercised sparingly and with caution and only in cases where the High Court Division is, for reasons recorded, of the clear view that continuance of the prosecution would be nothing but abuse of the process of the Court or proceeding is merely attended with malafide on the face of the record. The High Court - Division will not quash the proceeding if it is required to call upon appreciation of evidence. It cannot assume role of appellate Court while dealing with an application under section 561A of the Code of Criminal Procedure. [2022] 24 ALR (AD) 1 Section 561A The Court is required to look into the an allegation made in the FIR or petition of complaint that whether the same discloses any offence or not, but the High Court Division is not justified in invoking its inherent power on the basis of defence materials. Such defence plea should be determined after appreciating the evidence at the trial, giving an opportunity to put the materials on record and defence can disprove such materials by cross-examination of the witness. [74 DLR (AD) (2022) 40] In the case of Abdul Quader Chowdhury and others vs the State reported in 28 DLR (AD) 38 this Division while speaking on the jurisdiction under section 561A of the Code observed that: "In exercising the question under section 561A of the Code the High Court Division would not embark upon an inquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be upon to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained". [74 DLR (AD) (2022) 40] In the case of Ala Uddin vs The State reported in 24 BLC (AD) 139 it has been held by this Division: "The High Court Division on an application under section 561A of the Code is not Unauthorized to quash a proceeding adjudicating the disputed question of fact. Once issuance of cheque and signature thereon are found to be genuine, the Court shall proceed with the proceeding". [74 DLR (AD) (2022) 40] It was held by this Division in the case of Rahela Khatun vs Abul Hassan and others reported in 48 DLR (AD) 213: "A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case". [74 DLR (AD) (2022) 40] Code of Criminal Procedure (V of 1898) Section 561A There is no scope to quash a proceeding where disputed questions of fact are involved and prima facie case is disclosed. [73 DLR (2021) 598] Code of Criminal Procedure [V of 1898] Section 561A Whether in exercising power under section 561A of the Code of Criminal Procedure the High Court Division can consider, assess, evaluate the part evidence adduced by the prosecution before conclusion of the trial. It is by now well settled that quashment of a Criminal Proceeding under section 561A of the Code of Criminal Procedure is possible in cases of; i) facts alleged not constituting any offence; ii) the proceeding is barred by law; iii) coram non-judice; iv) lack of legal evidence adduced; v) for ends of justice. [2023] 27 ALR (AD) 37 The power of quashment of the proceeding under section 561A of the Code of Criminal Procedure, 1898 lies with the High Court Division true, but before exercising this power the High Court Division must be satisfied that the other available remedies have been exhausted by the applicant. It was held in the case of Habibur Rahman Mollah (Ex-Member of Parliament, Dhaka 4) vs State and another, 62 DLR (AD) 233 that, "Inherent power of the High Court Division is generally exercised where no other remedy is available for obtaining justice in the cause-it should not be invoked where another remedy is available. This power has not been vested upon the High Court Division where another remedy is available. This is an extraordinary power and is exercised in extraordinary circumstances in the interest of justice." In the present case, the respondents No.1-3 had other remedy available before making application for quashment of the proceeding i.e. making prayer for discharge under section 241A of the Code of Criminal Procedure, 1898. It is a settled principle of law that if there are criminal cases and civil suits between the same parties in respect of the same properties, even then it cannot be a bar to the continuation of the criminal proceeding i.e. the criminal proceeding will run in its own way. I was held in the case of State vs Sailendra Chandra Borman, 13 BLC (AD) 65 that, "pendency of a civil suit cannot bar the proceedings of criminal case for criminal offence." The same observation was given by our Appellate Division in the case of Khandaker Abul Bashar vs State and another, 63 DLR (AD) 79 "There is no legal impediment to file a criminal case even if a civil suit is pending on the selfsame allegations provided the ingredients of the offence are present." It was also held in the case of Khondaker Mahtabuddin Ahmed and others vs State, 49 DLR (AD) 132 that, "There is nothing in law precluding a criminal case on account of a civil suit pending against the petitioners on the same facts." [74 DLR (AD) (2022)] It is well-settled that the High Court Division has the widest and most comprehensive power under this section to pass any order or orders either on an application by a party or suomotu to prevent an abuse of the process of the Court or otherwise to secure the ends of justice. An accused can, however, prefer an application under section 561A Cr.P.C. only after he becomes previously unsuccessful in his application either under section 241A or 265C Cr.P.C. Md. IftekharulAlam Vs. The State and another, 15BLD(HCD) 188 Application under section 561A of the Code of Criminal Procedure cannot lie praying to quash the judgment of a criminal trial unless it is shown that there is no legal evidence. In the instant case the learned Advocate-on-Record failed to make out any case before us to hold that the instant case has got no legal evidence. Shahabuddin vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 420 Inherent power The High Court Division exercises its inherent power under section 561A independent of any other power under the Code of Criminal Procedure. Although the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still in a fit case it can interfere with the Sessions Judge's order by invoking its inherent power. This inherent jurisdiction is available even to a party who Tost in revision before the Sessions Judge. Cr.P.C. 561A Md. Sher Ali and others Vs. The State and another, 14BLD(AD)84 Inherent power Evidence being properly assessed by the trial Court and independently re-assessed by the appellate Court and found to be reliable, no interference is called for by the Court of revision or the High Court Division exercising inherent jurisdiction U/s 561A Cr.P.C. Abdul Khaleque and others Vs. The State and another, 14 BLD (AD) 131 Inherent power Once it is found that there is a prima facie case for going to the trial, a criminal pro- ceeding cannot be quashed-Cr.P.C. 561A. Hussain Mohammad Ershad Vs. The State, 14BLD(AD)161 Inherent power In a proceeding under section 561A the High Court Division cannot embark upon an enquiry to ascertain the truth or otherwise of the prosecution case or of facts which are not in the prosecution case. H.M. Ershad Vs. The State, 14BLD(AD) Ref: 44 DLR (AD) 215; 33DLR 379; 17 178 DLR (SC) 261-Cited Inherent power The question of malafide in launching a criminal prosecution can be determined only on taking evidence at the trial. The High Court Division was right in refusing to quash the proceeding. Cr.P.C 561A Engineer Afsaruddin Ahmed Vs. The State, 14BLD(AD) 206 Inherent power In the face of the confessional statements and the statements of witnesses recorded un- der section 161 Cr.P.C. it cannot be said that this is a case of no evidence and as such the proceeding cannot be quashed-Cr.P.C. 561A Nasim Bin Rahman Vs. The State, 14BLD(AD) 216 Inherent power Although quashing of a criminal proceeding at the stage of submission of charge sheet is not generally permitted, yet under special circumstances quashing of a proceed- ing is permissible even at this stage-Cr.P.C. 561A, AfiaKhatoon Vs. Mobasswir Ali and others, 14 BLD (AD) 251 Inherent power Section 561 of the Code of Criminal Procedure has only reiterated the Court's inherent power to give effect to any order under the Code to prevent an abuse of the process of the Court or otherwise to secure the ends of justice. The fact that the accused were tried and found guilty and then unsuccessfully filed an appeal and a revisional application cannot be a ground for refusing to exercise the Court's power under section 561A Cr.P.C. Mofazzal Hossain Mollah and others Vs. The State 13BLD (AD) 207) Inherent Power After discharge of an accused person in a case the Magistrate has no power to revive the proceeding against the discharged accused in the absence of a fresh complaint or a fresh police report. Revival of a case without fresh complaint or a fresh police report is illegal and without jurisdiction. Cr.P.C. S. 561A. Maulana M.A. Mannan and others Vs. The State, 15BLD(HCD) 151 Ref. 14 DLR (SC)96: 35 DLR 32- Cited. Inherent Power The inherent power of the High Court Di- vision is generally exercised for preventing an abuse of the process of the Court but nevertheless the said power can also be exercised in respect of a proceeding which has reached its finality on the conclusion of the trial when it is found necessary to prevent an injustice. Cr.P.C. S. 561A Sohail Ahmed Chowdhury Vs. The State, 15BLD(HCD) 452 Inherent power Remedy under section 561A should not be made available to a litigant when other remedies under the Code of Criminal Procedure are available to him. The High Court Division acts under section 561A of the Code only to prevent abuse of the process of the Court or otherwise to secure the ends of jus- tice. Cr.P.C. S. 561A Maksudur Rahman Hilaly and others Vs. The State, 15BLD(HCD) 226 Inherent Power In exercising power under section 561 A the High Court Division will only see if there are prima facie allegations diselosing criminal offences against the accused persons-Cr.P.C. Mr. Moudud Ahmed Vs The State, 16 BLD (AD) 27 Section 561A Inherent Power When there are allegations of conspiracy forgery and abatement against the accused persons, the truth or otherwise of which can only be decided at the trial on evidence, there is no scope to quash the proceedings under section 561A Cr.P.C. Dr. M. Faruq Vs. The State and another, 16BLD(AD) Inherent Power When allegations made in the F.LR. or petition of complaint disclose any criminal offence and charge has already been framed against the accused the High Court Division was right in refusing to quash the proceedings on possible defence pleased. Kabir alias Bakiruddin and others Vs. The State, 16BLD(AD)290 Section 561A Cr.P.C Inherent Power Whether the charge framed against the accused petitioner shall be proved or not is a matter for the trial Court to decide on taking evidence. The High Court Division in exericising power w/s 561A cannot embark upon an enquiry to ascertain the sufficiency or reliability of the evidence that may be forthcoming at the trial-Code of Criminal Procedure, 1898 (V of 1898) S. 561A Mondud Ahmed Vs. The State, 16BLD(HCD)36 Ref: 39 DLR 109: A.LR. 1965(SC) 961; AIR. 1977 (SC) 1361: ALR 1982 (SC) 149; 33 DLR 348: 45 DLR(AD) 50 (Para -6); 11 BLD (AD) 55; 24DLR 151; 15 DLR 549, 34 DLR 287; 40DLR (AD) 226, 35DLR 100, 12 BLD 304; 1965 (SC) 961; 1977 (SC) 1361; 1982(SC)149; 1988(SC)782; 1974(SC) 348: 33 DLR (AD) 187; 1971 (SC) 1092; Law Re- port (1955) A.C. 197 (P.C.)-Cited Inherent Power Prevention of Corruption Act, 1947 (11 of 1947) is applicable only to public servants allegedly committing offences in discharge of their public duties and as such a case involving only private individuals cannot be tried under the said Act-Cr.P.C. S. 561 Golam Md. Abdul Awal Sarker and others Vs. The State, 16BLD(HCD)200 Ref: 47 DLR 521-Cited Inherent power While the proceeding under section 12(1) of the Building Construction Act is still pending in the Court of the Chief Metropolitan Magistrate, Khulna any direction at this moment is unnecessary to dismantle the alleged construction, which was not the subject- matter under consideration before the High Court Division. Champak Ranjan Saha Vs. Authorised Officer, Khulna Development Authority and others, 17BLD (AD) 234 Inherent power The High Court Division may interfere under section 561A of the Code even during the police investigation if no cognizable of fence is disclosed. Monotosh Dewan Vs. The State, 17BLD (HCD) 265 Inherent power The power under section 501A Cr.P.C. is highly discretionary. Such an extraordinary and discretionary power cannot be exercised in favour of the persons who have themselves disrespected the Court complained of. Dr. Ahmed Sharif Vs. The State and another, 17BLD(HCD) 23 Inherent power A convict may seek relief under section 561A Cr.P.C. if he can make out a case of coram-nonjudice of the trial Court or that the facts alleged do not constitute any criminal offence or that the conviction has been based on no legal evidence. Alamgir Hossain alias Alamgir vs. The State, 17BLD(HCD) 478 Ref: 15 BLD 239 and 46 DLR175; 45 DLR(AD) 175; 46 DLR(AD)67; 15 BLD 452: 28 DLR (AD)38; 12DLR(SC)165; A.I.R. 1967(Punjab)244; 15DLR(SC)150; 1933 (SC) 435; 1986C.L.J. (Allahabad)1233; 1967 PLD (SC) 317; 42DLR(AD)219 Cited Inherent power It is now well-settled that the High Court Division has the inherent power to pass any necessary order to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. In several pronouncements both the High Court Division and the Appellate Division had clearly laid down the law with regard to quashing of the proceedings. Latifa Akhter and ors Vs. The State and another, 19BLD (AD) 20 Cr.P.C Section-561A Inherent power Inherent power may be invoked under section 151 Cr.P.C independent of any power conferred by any other provision of the Code of Criminal Procedure Cr.P.C Section. 561A. Md Ali Asgar Vs. Md Esrail and others, 19BLD (HCD) 517 Ref: 46DLR(AD)67-relied Proceeding Proceeding before a court starts after the Magistrate takes cognizance of an offence on police report or on complaint. Before cognizance is taken there is no proceeding that may be quashed under section 561A. Quashing of a proceeding can be made even at the initial stage when facts and circumstances of a case demand it for securing the ends of justice-Cr.P.C. Ss. 4(m) and 561A Mubashwir Ali and others Vs. The State, 14BLD(HCD)566 Quashing The accused who was a Manager of the IFIC Bank and the complainant who is an officer of the Bank are public servants as it is a Banking Company whose 40% shares are held by the Government of the People's Republic of Bangladesh. So both the complainant and the accused are public servants and the com- plaint has been filed before the Senior Special Judge and Sessions Judge, Dhaka for taking cognizance under sections 409, 477(A) and 462(A) of the Penal Code and under section 5(2) of the Prevention of Corruption Act, 1947 for misappropriating an amount of Tk. 26.18 crores causing huge loss to the Bank. Section 110 of Bank Companies Act, 1991 also provides that a Manager, Officer and other functionaries of the banking company are deemed to be public servants under section 21 of the Penal Code. Thus, by reference to the relevant law it is clear that the appellant and the respondent are public servants and the case has been rightly instituted in the Court of Special Judge against the respondent who is also a public servant Section-561A, Penal Code, 1860(XLV of 1860), Section-21, Bank Companies Act, 1991(XIV of 1991). Section-110 International Finance Investment and Commerce Bank Limited Vs. Mr. Abdul Quayum and another, 19BLD (AD) 234 Ref: 50DLR (AD)125-relied upon Quashing Criminal Trial The alleged transaction in between the complainant and the appellant is clearly and admittedly a business transaction. The appellant had already paid a part of the money under the contract to the complainant. The failure on the part of the appellant to pay the complainant the balance amount under the bill does not warrant any criminal proceeding as the obligation under the contract is of civil nature. The High Court Division were not justified in refusing to quash the proceeding in question although the transaction in ques- tion between the parties is clearly of a civil nature.Cr.P.C S. 561A, Penal Code, 1860 (XLV of 1860), S. 420 DewanObaidur Rahman Vs. The State and ano., 19BLD (AD) 128 Ref: 45 DLR(AD)27 Quashing Criminal Trial The allegations made in the petition of complaint it clearly shows that the petitioner had initial intention to deceive the complain ant and thereby misappropriated the money. So, it cannot be said that it is a case of civil nature. The petition of complaint undoubtedly discloses criminal offence against the accused-petitioner. The Appellate Division held that the High Court Division rightly refused the prayer for quashing the proceeding. Penal Code, 1860 (XLV of 1860) Section-406 and 420 Abu Baker Siddique Vs. The State & anr., 18BLD (AD) 289 Quashing The cheque in question was issued by the appellant on 21.12.1995 which was presented for encashment on 23.12.1995 but it was dishonoured on the same day whereupon the complainant issued notice to the appellant on 24.12.1995 for payment of money for which the cheque was issued following the clause (b) to the proviso to section 138 of the Act.. On receipt of the said notice the appellant in order to avoid payment fraudulently informed the complainant through a lawyer on 4.1.1996 that he had lost the cheque written in the complainants name and made a GD Entry in that behalf. The cause of action for prosecution will arise under clause (c) of the proviso to section 138 on the failure of the appellant to pay the amount within 15 days of the receipt of the notice of the complainant. Relying on the complainant's own case it is contended on behalf of the appellant the accused- appellant must be fixed with notice for pay- ment at least from 4.1.1996 and after the ex- piry of 15 days from that date i.e; from 19.1.1996 the cause of action should be taken to have arisen due to non-payment within the said period and complaint was required to be filed within one month from 19.1.1996 in compliance with clause (b) of section 141 of the Act. Admittedly the petition of complaint was filed long after that date i.e., on 18.4.1996 and thus cognizance could not be taken upon such complaint. The subsequent allegations will not save the limitation be- cause the requirement under the law is that the complaint has to be filed within one month of the date on which the cause of action arises under clause (e) of the proviso to section 138 of the Act and hence the impugned proceed- ing is quashed-Negotiable Instruments Act, 1881 (XXVI of 1881), Sections-138 and 141, Code of Criminal Procedure, 1898 (V of 1898), Section-561A S.M. Anwar Hossain Vs. Md. ShafiqulAlam (Chand) &anr, 19BLD (AD) 166 Quashing From the petition of complaint it appears that accused-petitioners prima facie dishonestly induced the complaint to part with the informants money and thereafter misappropriated the sum and as such the question of quashing the proceeding does not arise at all-Code of Criminal Procedure, 1898 (V of 1898), Section-561A S.M. Abdul Khaleque Vs. The State and another, 19BLD (AD) 288 Quashing Mere allegation of inordinate delay in lodging the complaint is no ground for quashing a proceeding where cognizance has been taken in pursuance of a judicial enquiry and charge has already been framed-Cr.P.C 561A Kazimuddin and others Vs. ManjurBepari and others, 14BLD(HCD) 172 Quashing Since the alleged offending utterances do not constitute an offence of defamation, the prolongation of the impugned proceeding amounts to an abuse of the process of the Court-Cr.P.C. 561A A.K.M. EnamulHaque Vs. Md. Mizanur Rahman and others, 14BLD (HCD)201 Ref: 28 D.L.R. (AD)38; 1954 Cr.L.J. 800-Cited. Quashing A criminal case in the normal course is to be tried under the provision of the Code of Criminal Procedure and it should not generally be interfered with at an interlocutory stage. But when the initiation and continuation of a criminal proceeding amounts to an abuse of the process of the court, the High Court Division will be justified to quash the proceeding for securing the ends of justice- Cr.P.C. 561A Engineer Afsaruddin Ahmed Vs. The State, 14BLD(HCD)445 Ref: 27 DLR(SC)152; 19 DLR(SC) 439, 31DLR(AD) 69; 40 DLR (AD) 69; 15 DLR (SC) 150; 51; 28 DLR (AD) 38; 34 DLR 371 and 34DLR 390; 12 BLD 600; A.IR. 1945 (PC) 18: A.I.R. 1963(Punj) 419; A.I.R. 1966 (Kerala) 264-Cited Quashing Quashing of proceedings is called for in three categories of cases: (i) when there is a legal bar against the initiation of the proceeding and in holding trial of the case, (ii) when the F.L.R. or the petition of complaint taken as a whole and accepted on its face value does not constitute the alleged offence and (iii) when the facts are so preposterous or absurd that even on admitted facts no case stands against the accused persons. But the High Court Division in exercising power under section 561A Cr.P.C. cannot embark upon any enquiry to ascertain the truth or otherwise of the prosecution case or of the sufficiency and reliability of the evidence, Md. Zakir Hossain Vs The State, 14BLD (HCD)542 Ref: 28 DLR(AD)38; 31 DLR(AD) 69; 38 DLR(AD)18; 45 DLR(AD)48-Cited Quashing The settled law is that for quashing a criminal proceeding it must come under any of the following categories: (1) where facts are so preposterous that even on admitted facts no criminal case stands against the accused; (2) where the institution and continuation of the impugned proceeding amounts to an abuse of the process of the Court; (3) where there is a legal bar against the initiation and continuation of the proceeding: (4) where the allegations in the F.I.R. or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute any offence and (5) where there is no legal evidence adduced in the case or the evidence adduced clearly and manifestly fails to sustain the charge. Cr.P.C., Section-561A Ali Akkas Vs. Enayet Hossain and others, 17BLD (AD)44 Ref:28DLR(AD)38:31DLR(AD)69-Cited Quashing For non-compliance of the mandatory provision of section 155(2) of the Code of Criminal Procedure the petitioner succeeds in making out a case for quashing the proceeding under section 561A of the Code. Moanotosh Dewan Vs The State, 17 BLD(HCD) 265 Ref: AIR(32) 1945(PC)18; 35 DLR200-Cited Quashing Where in a proceeding has been initiated legally in a competent court and it cannot be shown that such proceeding, if is allowed to continue, will be "abuse of process of Court" and need be quashed "for ends of justice" dispensation of personal appearance of the accused before such court does not fall within the meaning of section 561A of the Code. Shahid Miah Vs. The State, 20BLD (AD)265 Quashing Mere admission of another petition under section 561A of the Code challenging the same judgment cannot be a ground for admission of the subsequent petition under the same provisions of law by another convict unless he satisfies the Court that he had cogent reason for not preferring any appeal under section 561A of the Code as early as possible and that the impugned judgment suffers from inherent illegality. Monir Hossain Vs. The State, 20BLD (HCD) 234 Quashing When an earlier proceeding alleging of- fences of forgery was dismissed by the Magistrate on the finding that the dispute was one of a civil nature, a second proceeding on the same facts and allegations amounts to an abuse of the process of the Court. Such a proceeding is clearly vexatious and it amounts to misuse of the provision of law. S. 561A Dil Afrose Vs. Md. Mostamsher Billah alias M.S. Billah and others, ISBLD(AD)3 Quashing When there is no legal evidence on record to justify the conviction, the impugned order of conviction clearly amounts to an abuse of the process of the court and is therefore liable to be quashed-Cr.P.C. S. 561A Fazlul Haq Sikder Vs. The State, 15BLD (HCD) 364 Quashing Since the age of the victim was mentioned as 18 years in the F.I.R. and the Registration Card issued by the Board of Secondary and Higher Secondary, Rajshahi shows that she is above 18 years, the High Court Division held that victim Kabita Banu Shaki is prima facie a major and she of her free will married accused Manik by a registered Kabinnama, no ingredients of any criminal offence were disclosed and were quashed the proceedings-Cr.P.C. Section 561A Md. Manik alias Md. Akkash Khan (Maink) Vs. The State and another, 17BLD (HCD)66 Ref: 28 DLR(AD) 38; 31 DLR (AD) 69; 26 DLR (SC) 17; 28 DLR 123; 17 DLR 544; 36 DLR(AD) 14 Cited Quashing The allegations made in the F.I.R, even taken as it is, do not disclose any offence un- der section 409 of the Penal Code and Section 5(2) of Act 11 of 1947 and there is nothing on record to show that the petitioner was en- trusted with the money in question or he had any domain over it. In the circumstances. continuation of the impugned proceeding amounts to an abuse of the process of the Court and as such it is liable to be quashed. Cr.P.C. Section-561A A.K.M. Rafiqul Islam Vs. The State, 17BLD(HCD) 198 Ref: A.LR. 1996 (SC) 740; 15BLD (AD) 108; A.IR. 1979(SC) 798-Cited Quashing The High Court Division would be justified in rejecting an application for quashing of a proceeding when there is no appropriate application therefore with appropriate prayers before it. It is no duty of the High Court Division to indulge in doling not gratuitous advice to the applicant without hearing the other side or the Court concerned. Section-561A Moulana Md. Yusuf Vs. The State and another, 18BLD (AD) 227 Quashing Since a prima facie case has been made out in the petition of complaint and the trial had already been commenced and evidence of P.W.I had been recorded and as such the proceeding cannot be quashed-Penal Code, 1860 (XLV of 1860), S. 493, S. 561A, Md. Arzoo Mia Vs. The State, 18BLD (HCD)663 Ref: PLD1967(SC) 317; AIR 1976(SC) 1947; AIR 1977(SC)1754: (1977) 2SCR 357; 28DLR(AD)38: 46DLR(AD) 67;-Cited Quashing Criminal Proceeding-When quashed A criminal proceeding cannot be quashed when there is a prima facie case against the accused-Cr.P.C. 561A Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD)78 Ref: 12 DLR 520; 30 DLR 327 Code of Criminal Procedure Section 401-Courts have the jurisdiction in certain circumstances to pass an order directing that the accused shall not be entitled to the benefit of Penal Code, the Code of Criminal Procedure and the Jail Code in respect of commutation, deduction and remission and the details of such authority of the Court have been explained. Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298 Section 401—Empowers the Government to remit and suspend a sentence passed by a Court but for such remission and suspension of sentence the order of conviction is not reversed. It remains in force, but the convict due to an order of rem ission and suspension passed under section 401 CrPC is not to serve out the period of sentence so suspended and is not to pay the fine so remitted. Nasiruddin Miah vs State 40 DLR 244. Sections 401 and 423—In ease of an appeal from an order of acquittal, the Court may refuse the prayer of withdrawal of the appeal as it may find on hearing the appeal on merit that the order appealed is illegal and calls for an order of conviction. Nasiruddin Miah vs State 40 DLR 244. Section 401-The question of remissions of the entire sentence or a part of it lies within the exclusive domain of the Government under section 401 of the Code and neither section 57 of the Penal Code nor Rules can stultify the effect of the sentence of life imprisonment given by the court. As it is not possible to fix a particular period of the prisoner's death so any remission given under the Rules could not be regarded as a substitute for a sentence of life. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 401-The executive and the judiciary exercise distinct powers and play distinctive roles. The executive exercises power by the State is in a nature of subordinate role, while a judicial decision is given by a court after analysis having regard to the proportionality of the crime committed. If it decides that the offender deserves to be punished with a sentence of death or in exceptional case his sentence of death be commuted to life imprisonment, this power cannot be exercised by the executive. This power is exercised by the court under the Constitution, Code of Criminal Procedure and the Penal Code. Judicial power exercised by the court should not be interfered with by the executive Government in exercise of its power of remission under section 401 of the Code. Ataur Mridha @ Ataur vs State, 69 DLR (AD) 214 Section 401(1)- If a fugitive from law is given pardon knowing his status then the exercise of power under Article 49 of the Constitution or section 401(1) of the Code certainly be arbitrary, malafide, unreason- able, irrational and improper and such exercise of power is against the principle of the rule of law and an abuse of the power. Sarwar Kamal vs State, 64 DLR 329 Section 401(1)(2)(3)-Sub-section (1) of section 401 of the Code has empowered the Government to suspend or remit sentence, either whole or party of the punishment to which a convict has been sentenced; on the other hand sub-section (3) of the section has empowered the Government to cancel the suspension or remission of sentence and to take the concerned person into custody, if at large, to undergo the unexpired portion of sentence; sub-section (2) of the section makes a provision that the Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state is opinion as to whether the application should be granted or refused. Sarwar Kamal vs State, 64 DLR 329 Section 403—Double Jeopardy—The accused is going to be prosecuted in respect of an offence which did not occur during the earlier transaction nor the present case arose out of the same fact and for the present offence he was not tried previously. In such a position the doctrine of autrefois acquit and autrefois convict or of the Code as to double jeopardy is not applicable in the present case. HM Ershad vs State 45 DLR 534. Section 403—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. Section 403(1)—The whole basis of section 403(1) of the Code as well as Article 35(2) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal—if the court is not so competent, the whole trial is null and void and it cannot be said that there was any conviction or acquittal in force such a trial does not bar a subsequent trial of the accused. Muhammadullah vs Sessions Judge 52 DLR 374. Section 403(2)—Trial of an accused for one distinct offence will not stand in the way of his subsequent trial for the other distinct offence as specifically provided by sub-section (2) of section 403. The former trial for unauthorised possession of the firearms will not be a bar to the subsequent trial for the offence of robbery, even if the same firearms have been used while committing the robbery. The trial of the petitioners in this case is perfectly lawful. Arfan Ali vs State 42 DLR (AD) 22. Section 403-Previous conviction or acquittal impose bar subsequent trial for the same offence not for a different offence constituted by the same acts. Gias Uddin- al-Mamun (Md) vs State, 65 DLR 375 Section 403- Bangladesh a sovereign entity shall determine what act or omission committed within its territory constitutes an offense in exercise of power under its own law, not that of the other. Therefore, no violation of the prohibition on double jeopardy results from successive prose- cutions under the relevant penal law of Bangladesh, because by one act the accused has committed two offences one is beyond the territory of Bangladesh which was punishable under law of UK a distinct sovereign entity and now is being prosecuted for the same act constituting offence punishable under law of our own. Robin Chowdhury @ Misba Uddin vs Anti- Corruption Commission 69 DLR 253 Section 403-It cannot be said that the accused is being prosecuted twice for the same offence' merely for the reason that he has been convicted for the same act which constituted and offence punishable under the law of UK. It transpires that the accused allegedly by a single act violated laws of two sovereign states and thereby committed two distinct offences and thus the prosecution relating to an offence punishable under our own law even for the same act does not breach the doctrine of 'double jeopardy. Robin Chowdhury@ Misba Uddin vs Anti-Corruption Commission 69 DLR 253 Section 403-A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal seem is in force, not be liable to be tried again for same offence. There is no room to say that by accepting the report under section 173 of the Code a vested right has been created in favour of the accused opposite parties. Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380 S. 403-Previous conviction or acquittal impose bar subsequent trial for the same offence not a different offence constituted by the same acts. Gias Uddin-al-Mamun (Md.) Vs. State, 65 DLR (2013)-HCD-375. S. 403-There is nothing like res-judicata in a criminal trial as long as it does not terminate in either acquittal or conviction so as to attract the provisions of section 403 of the Code. TaeHung Packaging (BD) Ltd. Vs. Bangladesh (Civil), 18 BLC (2013)-AD-144. Sections 404, 410, 417, 418, 422 & 423— The Code drew no distinction between an appeal against an acquittal and an appeal against a conviction, as regards the powers of the High Court. Dilruba Aktar vs AHM Mohsin 55 DLR 568. Property The expression "property" occurring in section 405 of the Criminal Procedure Code, should not be given a narrow construction. Blank forms of tickets are also property when the same are converted into ticket. A.H.M. Siddique Vs. The State, 13 BLD (HCD) 85 Section 408—Appeal will lie to the Court of Sessions if the Assistant Sessions Judge deemed to be an Additional Sessions Judge passes a sentence of imprisonment for a term of five years or less. Section 408 has full force and application. Nurul Huda vs Baharuddin 41 DLR 395. Sections 408, 417A & 423—Except under the provisions of section 41 7A of the Code there is no other provision for filing appeal for enhancement of sentence. In an appeal from a conviction, sentence may be reduced by an appellate Court but sentence can be enhanced only in an appeal for enhancement of sentence and that can be done after giving the accused an opportunity of showing cause against enhancement. Moktar Ali Bepari vs State 51 DLR 439. Section 409—An Assistant Sessions iu1e deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, eg for hearing appeals, revisions, references and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abdul Kashem vs State 43 DLR (AD) 77. Sections 409, 410, 435, 436, 438 and 439A—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. Section 410 has also full force and any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court Division. This section has no reference to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The same applies to sections 435, 436, 438 and 439A. Nurul Huda vs Baharuddin 41 DLR 395. S. 409–Under section 409 of the Code the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge who is deemed to be appointed as an Additional Sessions Judge for some limited purposes. Tajul Islam Vs. Billal Hossain, 18 BLC (2013)-AD-207. S. 409-Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge who is deemed to be appointed as an Additional Sessions Judge for some limited purposes. This appeal arises out of the Leave granted by the Appellate Division in Criminal Petition for leave to appeal preferred by the present appellants against the judgment and order passed by a single Bench of the High Court Division in Criminal Revision discharging the Rule arising out of judgment and order passed by the learned Assistant Sessions Judge, Chandpur in Criminal Appeal dismissing the appeal and affirming the order of conviction and sentence passed by the learned Magistrate, Chandpur, convicting the appellants under section 147 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for 30 days. Appellate Division held that 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 and set aside the judgment and order of the High Court Division. Appellants appeal is remanded to the Court of Sessions Judge, Chandpur for disposal in accordance with law. Tajul Islam and others Vs. Mr. Billal Hossain and another, 18 MLR (2013)-AD-164. Section 410—Non-appealing—accused— Benefit of acquittal—In the face of clear illegality committed by the learned Additional Sessions Judge in convicting all the 3 accused of the offence under section 396 of the Penal Code, if we do not record an order of acquittal in favour of accused Fazlul Huq, the non-appealing accused, it means that we are allowing an illegal order to perpetuate. In that view of the matter, we hold the entire order of conviction and sentence be set aside and the absenting accused Faziul Huq is also entitled to get the benefit of this order. Arzan Iman Ali vs State 48 DLR 287. Section 410—The High Court Division sitting in appeal was bound to give due weight to the opinion of the trial Court with regard to the credibility and demeanour of the witnesses. State vs Abdus Sattar 43 DLR (AD) 44. Section 410 The appellate Court's jurisdiction is co-extensive with that of the trial court in the matter of assessment, appraisal and appreciation of the evidence and also to determine the disputed issues. The High Court Division has a wide appellate jurisdiction over all Courts and tribunals in Bangladesh inasmuch as it may, in its discretion, from any judgment and order of conviction and sentence passed by any Court of Sessions and tribunal. State vs Nurul Amin Baitha (Criminal) 75 DLR (AD) 187 Section 410-Ordinarily this Division does not interfere with the acquittal recorded by the High Court Division in favour of the accuseds but it cannot shirk its responsibility when it comes across an acquittal recorded in the most perfunctory manner leading to great injustice. Jurisdiction of this Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. State vs Abdus Salam, 67 DLR (AD) 376 Sections 410 & 423-Since we have entered into the merit of the matter, considered the entire evidence on record, it will be a futile attempt to send the case of Ataur Rahman on remand after expressing opinion regarding his complicity on analysing the evidence of PWs 2-4. We do not approve the manner in which the High Court Division has dismissed the appeal of Ataur Rahman. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Sections 410 and 426-In conducting the appeal, the convict is entitled to enjoy the advantage of treating her/his appeal as continuation of trial, notwithstanding her/his status of remaining a convicted person from the perspective of presump- tion. Appeal, as the continuation of the trial, would not ipso facto bear the notion of remaining innocent until disposal of appeal. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 Sections 410—423 read with—Employment of Labour (Standing Orders) Act (VIII of 1965)— Section 26. Order of sentence passed by the Labour Court under the provisions of Employment of Labour (Standing Orders) Act is not appealable to the appellate authority under the Code of Criminal Procedure as there is no provision for such appeal under the Employment of Labour (Standing Orders) Act. Jagodish Chandra Dutta vs MH Azad 41DLR 257. Section 410—Accused Ali Mia, though did not prefer any appeal against his conviction and sentence, there is no reason to keep him is custody on the basis of illegal evidence. Shah Alam and others vs State 52 DLR 567. Section 410—The date of conviction and sentence pronounced by the trial Court should not be taken to be the starting point for the disqualification against the convict sitting Member on account of such conviction in a criminal case involving moral turpitude. HM Ershad vs Abdul Muqtadir Chowdhury 53 DLR 569. Section 410-It is surprising to find the peculiar way of disposal of criminal appeal by the High Court Division that shirked responsibility misdirecting themselves and shouldered the same on Allah. This sort of disposal of criminal appeal is unknown to our criminal jurisprudence, this unwarranted method of administration of justice is disapproved. State vs Kh Zillul Bari 57 DLR (AD) 129. If a superior Court disposes a criminal matter, more particularly a criminal appeal of such a great importance in such a light hearted manner without any application of judicial mind then that will have a demoralizing effect on the subordinate judiciary indisposing criminal justice in Bangladesh. Mahmudul Islam @ Ratan Vs. The State), 20BLD (AD)249 Section 412—The right of appeal of a convicted accused is taken away if the court accepted the plea of guilty and convicted him on such plea. Ayar @ Ayaruddin vs State 56 DLR 494. Section 417—Review of evidence—The reason given by the Judges of the High Court Division to disregard the evidence of PWs 2, 3 & 4 relying only upon the evidence of PW 7 is rather artificial. In an appeal by the State against acquittal it is quite open to the Court to review the evidence in order to see whether finding on which acquittal is based is perverse being in wanton disregard of good and unblemished evidence given by other witnesses. State vs Ashraf Ali 43 DLR (AD) 83. Section 417(1)(2)-Under section 417(1) and (2) only the government or the complainant may file appeal against an order of acquittal. The informant could only file a revision against the order of the Chief Metropolitan Magistrate, but in this case a person who was not the complainant has filed an appeal which is not contemplated under the law. Nurul Alam vs Saleha Khatoon (Criminal), 73 DLR (AD) 153 Section 417—As a matter of practice the High Court Division normally grants bail to the persons who are acquitted after a full-fledged trial when the State prefers an appeal against the order of acquittal. Abdul Hafez Howlader alias Habibur Rahman vs State 51 DLR (AD) 67. Sections 417, 418 and 423—Provisions under these sections give to the High Court Division full power to review the evidence upon which the order of acquittal was founded—No limitation should be placed upon that power. Shah Alam vs State 42 DLR (AD) 31. Sections 417 and 439(4)(5)—Petitioner acquitted of the charge of dacoity by the trial Judge—Government had not preferred any appeal under section 417 CrPC—Section 439 CrPC does not authorise High Court Division to convert a finding of acquittal into one of conviction. Held— the Rule issued suo motu by the High Court Division was without jurisdiction. Jalal Uddin vs Bilkis Rahman & State 42 DLR 107. Section 417—On an appeal for acquittal the appellate Court is not entitled to interfere with the decision of the trial Court on facts unless it has acted perversely or otherwise improperly. Dilruba Aktar vs AHM Mohsin 55 DLR 568. Section 417—The Code drew no distinction between an appeal from an acquittal and an appeal from a conviction and no such distinction could be imposed by judicial decision. Dilruba Aktar vs AHM Mohsin 55 DLR 568. Section 417—Before an order of acquittal is reversed it must be shown that the judgment is not only unreasonable or manifestly wrong but it is also manifestly perverse and unless such a finding can be made on the basis of materials on record the order of acquittal should not be interfered. State vs Wasikur Rahman 58 DLR (AD) 60. Sections 417 & 423—In an appeal from acquittal, the appellate Court in exercise of its appellate authority is not entitled to interfere with the decisions unless those suffer from manifest illegality, legal infirmity and perversity rendering a positive miscarriage of justice. Dilruba Aktar vs AHM Mohsin 55 DLR 568. Section 417(1)—Finding of acquittal cannot be said to be perverse if it is not absolutely against the evidence. State vs Shamima Arshad 52 DLR 617. Section 417(1)(a)—Maintainability of appeal by witness against order of acquittal—The State under section 417(1)(a) of the Code is authorised to present an appeal against an order of acquittal passed by the Court of Sessions. But in the present case, the appeal was not preferred by the State. The appeal was filed before the High Court Division by a witness who is also the petitioner in the present petition for leave to appeal. Hence this leave petition is not maintainable in law. Fazar Ali Manik Chan vs Fazar Ali 43 DLR (AD) 129. Sections 417(1)(b) & 439A—Where the State has not filed any appeal against the order of acquittal passed by a Magistrate in a police case the informant is competent under section 439A of the Code to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. Abu Taher vs Hasina Begum 50 DLR 19. S. 417(2): There is no provision of second appeal; remedies against conviction or acquittal by lower appellate court lies in filing a revision only: Clearly section 417(2) of the CrPC relates to an appeal before the High Court Division which may be preferred by the complainant against acquittal from an original order of acquittal passed by any Court of Session. Where the lower appellate Court has reversed the findings of the trial Court by acquitting the accused, the only redress for the complainant is to file a revisional application before the High Court Division....(......Para 7). Ahmed Hossain Vs. Azizul Hoque 1 CLR (2013)-AD-131. Section 417(3)—The special limitation provided in sub-section (3) of section 417 CrPC is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed in a case upon a petition of complaint. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198. Section 417(3)—A case registered upon lodging of an Ejaher and culminating in charge- sheet and thereupon person(s) recommended by the police for prosecution was put on trial and the trial ends in acquittal and thereupon if Government files an appeal the ‘special limitation’ provided by section 417(3) of CrPC shall have no manner of application. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198. Section 417A—Appeal by informant— Competency—The contention that an appeal at the instance of an informant from an inadequate sentence lies under section 417A has no substance. Abdul Aziz vs State 44 DLR 594. Section 417A—That all judgment, whether conviction or acquittal are appealable under section 30(1) of the Special Powers Act. Under sub-section (1) of section 27, criminal cases coming within the ambit of the Special Powers Act can only be initiated on a report in writing made by a police officer not below the rank of Sub-Inspector So no private party has any right to initiate such cases. Section 30 seems to cover appeals by a the State. Therefore, this appeal is not maintainable under section 417(1) of CrPC. State vs Wanur Rahman 40 DLR 346. Section 417A(2)—Section 417A(2) of the Code appeal lies to the appellate Court against the sentence on the ground of inadequacy. The appellate Court was the Court of Sessions but no appeal was filed before the Court of Sessions rather it was filed, long after the limitation, before the High Court Division. The very appeal was incompetent and the High Court Division acted illegally in entertaining the appeal and therefore, the judgment of the High Court Division is liable to be set aside. In an appeal a sentence may not be enhanced whereas this may be done in revision and secondly that in revision and acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally exercisable in appeal as it may be exercised in revision by the High Court Division. GMM Rahman vs State 62 DLR (AD) 410. Section 417A- Section 417A empowers the complainant to prefer appeal to the appellate court against the sentence on the ground of its in adequacy. Sub- section (3) of Section 417A provides that when an appeal has been filed against sentence on the ground of its inadequacy, the appellate court shall not enhance the sentence except after giving to the accused reasonable opportunity of showing cause against such enhancement. Shahidur Rahman Khadem =VS= The State, [3 LM (AD) 600] Section 419-In the backdrop of repeated denial of police that Salauddin Ahmed is under their custody, we have no scope under section 491 of the Code to direct the police to bring up and produce Salauddin Ahmed before this Court. But, in our view, police cannot absolve their responsibility just by saying that Salauddin Ahmed is not under their custody. The State has a responsibility to protect the life and liberty of its citizen. The reply of police that Salauddin Ahmed is not under their custody is not enough. In fact, Police should come up with some positive news about the whereabouts of Mr Salauddin Ahmed. Hasina Ahmed vs State, 67 DLR 343 Section 420—The proviso to sub-section (1) of section 421 does not apply to appeals presented under section 420 of the Code. In the case of jail appeals the court can summarily dismiss the appeal on perusal of the papers without calling upon the appellant to appear. Ayar @ Ayaruddin vs State 56 DLR 494. Section 420—The Inspector-General of Prisons is to circulate and get notified this judgment to every superintendent of jails all over the country within seven days for compliance so that the jail appeals of less privileged prisoners are communicated to the appropriate appellate Courts in the light of directions given. Ayar @ Ayaruddin vs State 56 DLR 44. Section 420-When a prisoner in jail applies through the Superintendent of Jail for a copy of the judgment in order to prefer an appeal, it is superintendent’s business to procure and forward a copy applied for and to arrange that this is done. Ayar @ Ayaruddin vs State 56 DLR 494. Section 421—In a case of absentia trial, limitation shall run from the date of knowledge of the judgment and not from the date of judgment. Jamal Ahmed alias Jamal vs State 58 DLR 419. Section 422—Once the complaint has ended in conviction it was the State that came into picture and the State had to be given notice to sustain the conviction and complainant had no right to be given notice. Kamal Miah vs State 50 DLR 224. Section 422—A criminal appeal cannot be dismissed on technical grounds once it is admitted for hearing by the court. After admission, a criminal appeal can be disposed of only on merit. Kamal Miah vs State 50 DLR 224. Section 423—In view of the fact that the two foreigner-appellants have made a clean breast of their offence and never tried to beat the law by any smart manoeuvre and they have begged mercy of the court from the very beginning the sentence of the two foreigner appellants be reduced from life imprisonment to rigorous imprisonment for 7 years. Major (Retd) Ashrafuddin Sekander vs State 50 DLR (AD) 108. S. 423-There is no scope to commute death sentence to life imprisonment where the killing is brutal and heinous. The State Vs. Farid Miah & Ors, 33 BLD (2013)-HCD-22. Remand or retrial An order of remand or retrial is not to be made ordinarily unless it is absolutely necessary in the interest of justice. When the accused has suffered for a long period for no fault of his own, there should be no order for retrial after a long lapse of time. Abdur Razzak alias Geda Vs. The State, 16BLD(HCD)312 Section 423—When it is found after a full trial that there was a mis-trial or trial without jurisdiction, the Court of appeal before directing a fresh trial by an appropriate Court should also see whether such direction should at all be given in the facts and circumstances of a particular case. If it is found that there was no legal evidence to support the conviction then in that case it would be wholly wrong to direct a retrial because it would then be an useless exercise. Further, the prosecution should not be given a chance to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial. Asiman Begum vs State, represented by the Depuly Commissioner 51 DLR (AD) 18. Section 423—If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mis-trial, the Court may not for ends of justice direct a retrial. There is no question that the Court has undoubted right to direct a retrial where there has not been a trial in accordance with law. We are of the view that having regard to the facts and circumstances of the case and particularly in view of the fact that in the meantime (during pendency of appeal in this Court) the appellant has continued to suffer imprisonment, it is a fit and proper case in which the High Court Division should consider the case on merit also and then pass whatever order or orders it thinks appropriate in the interest of justice. Asiman Begum vs State, represented by the Deputy Commissioner 51 DLR (AD) 18. Section 423—Though a lawyer was appointed to defend the absconding accused, the appointment did not serve the purpose—The accused should be given an opportunity to defend himself properly by cross-examining the PWs and for that purpose the case is liable to be sent back to the trial Court. Ismail vs State 51 DLR 497. Section 423—In view of long detention of the appellants from the date of their arrest the prayer for commutation of sentence in respect of fine may be allowed. Rafiqul Islam @.Rafiq vs State 51 DLR 488. Section 423—The appellants had to undergo the rituals of a protracted trial and the agonies arising out of the order of conviction and sentence passed and by now much of their sins has been expiated by way of burning of the heart during this long period. Court in therefore, inclined to take a lenient view in awarding sentence to them. Ali Hossain vs State 52 DLR 282. Section 423—If a person is intended to be tried and punished with enhanced punishment or with punishment of a different kind as being a previous offender, the particulars of the previous conviction should be stated in the charge. The prosecution did not lead any evidence that the appellants were previously convicted persons. In that view, the Assistant Sessions Judge has awarded a harsh sentence to them. Bura Yunus vs State 59 DLR 549. Section 423—The appellant had already undergone the ordeal of trial and after the conviction during pendency of the appeal before this Court continued to suffer imprisonment which was imposed on him in the mistrial, so in the interest of justice a retrial should not be directed. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527. Sections 423 & 424—There has not been an elaborate discussion of the evidence on record. It is needless to say that a duty is cast upon the lower appellate Court to write out a proper judgment on facts while disposing of an appeal. Abdul Khaleque Master vs State 52 DLR (AD) 54. Section, 423(1)(a)(b)—A finding of acquittal can be converted into one of conviction only under clause (a) of sub-section (1) of section 423 CrPC. The suo motu Rule is without jurisdiction. Jalaluddin vs Bilkis Rahman and State 42 DLR 107. Section 423(i)(b)—Since the prosecution has totally failed to prove its case against any of the accused persons, non-appealing co-accused is also acquitted of the charge under section 382 Penal Code. Mofizul Islam vs State 54 DLR 221. Section 423(1)(b)—When sentence of fine is imposed in addition to sentence of imprisonment, this will amount to enhancement of sentence. The appellate Court may enhance the sentence but such enhancement cannot be made unless the accused is given an opportunity of showing cause against such enhancement. Mizanur Rahman vs Surma Khatun 50 DLR 559. Section 423(1)(b)(2)—Acquittal converted into conviction under section 423 CrPC—No interference in the absence of appeal against acquittal. Mofizuddin vs State 40 DLR (AD) 286. Section 423(1)(b)(2)—The Appellate Court has jurisdiction under section 423(1)(b)(2) of Code of the Criminal Procedure to reverse an order of acquittal purporting to “alter the finding” of conviction. Mofizuddin vs State 40 DLR (AD) 286. Section 423(b)(2)-The appellate court has power to alter the finding of the trial court and convict the accused person on the basis of the evidence on record. No restriction is placed on the power of the appellate court to alter the finding to any that it considers suitable to the purpose. The expression 'alter the finding' contem plates only an alteration of the finding of conviction which was appealed against and which was the subject matter of appeal. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, 3) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Section 423(b)(2)- If a palpable illegality is apparent in the trial Court's judgment while hearing an appeal from conviction, the appellate court can pass appropriate conviction for ends of justice on reappraisal of the evidence on record. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth All Shah, 68 DLR (AD) 13 Section 423- Section 423 relates to 'Powers of Appellate Court in disposing of appeal' and this power of the appellate Court may include a Court subordinate to the High Court Division. The appellate Court has power to enhance the sentence under section 423 (bb) in an appeal for enhancement of sentence. So this power can be exercised only when an appeal is filed by the state or the complainant, and in other cases initiated on a police report, if the state does not prefer appeal, the informant can file a revision petition, but in the absence of none, the appellate court has no power to enhance the sentence. If the appellate Court has no power to enhance the sentence without an appeal or revision being filed against the inadequacy of sentence, the High Court Division cannot exercise the power except in cases provided under section 439(6) of the Code. Shahidur Rahman Khadem -VS- The State, [3 LM (AD) 600] Sections 424 & 367—The Additional Sessions Judge sitting on appeal did not apply his mind at all in order to come to an independent decision. He came to the conclusion “found nothing illegal in the impugned order” just after quoting in his judgment some portions of the judgment of the trial Court. In such a position, no Rule need be issued—the case is sent back for delivering a proper judgment. Ekram Ali Fakir vs Abdus Samad Biswas 47 DLR 53. Section 426—Bail after conviction—The accused could obtain bail from the Appellate Court or from the High Court Division and not from the trial Court which became functus officio after the filing and disposal of appeal against conviction. Dulal vs State 43 DLR 321. Section 426—Bail—Suspension of sentence pending appeal—Release of appellants on bail— Sentence being in excess of one year Sessions Judge was not competent to grant such bail. Saidur Rahman vs State 40 DLR (AD) 281. Section 426—Bail—Condition for the bail is quite reasonable and can be complied with by the person seeking bail without any difficulty but payment of fine involving huge amount of money as a condition for bail may not be possible— Impugned order of payment of fine as a condition for the bail is not supportable either in law or on the principle of reasonableness. Iqbal vs State 41 DLR (AD) 111. Section 426—In cases of short term imprisonment, the judge should better dispose of the appeal very expeditiously failing which he may consider the question of bail (if raised again). Mahbub vs State 46 DLR (AD) 143. Section 426—Bail in a pending appeal— The matter of granting bail by the High Court Division, during the period of emergency, in a pending appeal filed by the convict who has been convicted and sentenced under the provision of Anti-Corruption Commission Act, 2004 in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. Government of Bangladesh vs Sabera Aman 62 DLR (AD) 246. Section 426–Bail in a pending appeal—The convict-appellant has been suffering from multifarious illness endangering life “at his advanced age of 58 years and he needs specialized, continuous and supervised treatment in a stress less condition”. Accordingly, on the ground of serious illness endangering life the convict- appellant may enlarged on bail. Iqbal Hasan Mahmood vs State 63 DLR 286. Sections 426 & 497—Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life. Appellate Division in some cases opined that a convict may be enlarged on bail if there is no chance of disposal of the appeal within the period of his sentence. A convict who is sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division. Bail granted to appellant-opposite-party Abdul Momin Sarder on 11-1-96 is cancelled and he is directed to surrender to his bail bond forthwith. State vs Abdul Momin Sardar 50 DLR 588. Section 426-Granting bail Section 426 of the Code of Criminal Procedure. was given by the High Court Division while granting bail to the said convict who was sentenced to 7 (seven) years imprisonment. Thus, when discretion is exercised judiciously, not perversely, the same generally is not interfered with by the Apex Court, which is reluctant in interfering with the discretionary power of the High Court Division. Durnity Daman Commission -VS- Begum Khaleda Zia, [5 LM (AD) 207] Section 426- In many cases, bail has been granted even in cases involving serious and heinous offences where the Court has observed that prima facie there is no legal evidence to sustain the conviction and there is chance to succeed in the appeal. In a number of cases, it has been also decided that where the sentence is relatively short and the appeal is not likely to be heard for some time, thus rendering the appeal infructuous, bail could be granted. On that consideration, to our knowledge, bail has been granted in cases where sentence of imprisonment extended to 3 (three) years...... Durnity Daman Commission -VS- Begum Khaleda Zia, [5 LM (AD) 207] Section 426- Undoubtedly in any case, where a court of law exercises its discretion, such discretion must be exercised judiciously. The Court must not lose sight of the fact that section 426 of the Code provides that the Court granting bail must record its reason in writing. Once that is done, this Court does not readily interfere with the discretion exercised by the High Court Division......Durnity Daman Commission -VS- Begum Khaleda Zia, [5 LM (AD) 207] Section 426-Undoubtedly in any case, where a court of law exercises its discretion, such discretion must be exercised judiciously. The Court must not lose sight of the fact that section 426 of the Code provides that the Court granting bail must record its reason in writing. Once that is done, this Court does not readily interfere with the discretion exercised by the High Court Division. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137 Section 426- The High Court Division in its wisdom considered the various maladies suffered by the appellant in the context of the fact that she is an aged woman of more than 73 years. Such reasoning cannot be said to be perverse. It is noted that the appellant was enlarged on ad-interim bail for a limited period. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137 Section 426-When discretion is exercised judiciously, not perversely, the same generally is not interfered with by the apex Court, which is reluctant in interfering with the discretionary power of the High Court Division. Durnity Daman Commis- sion vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137 Section 426- The power of the appellate Court to release a convicted person on bail is discretionary. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137 Section 426-In many cases, bail has been granted even in cases involving serious and heinous offences where the Court has observed that prima facie there is no legal evidence to sustain the conviction and there is chance to succeed in the appeal. In a number of cases, it has been also decided that where the sentence is relatively short and the appeal is not likely to be heard for some time, thus rendering the appeal infructuous, bail could be granted. On that consideration, to our knowledge, bail has been granted in cases where sentence of imprisonment extended to 3 (three) years. Durnity Daman Commis- sion vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137 Sections 426 and 498-Bail-In legal terminology "bail" is defined as temporary release of a prisoner from institutional custody in exchange of security given for the person to appear at a later date fixed for hearing. The concept of bail is relevant at two different and distinct stages, namely, pending trial of any offender and after conviction. The considerations for bail pending trial are entirely different from those for bail after conviction. Durnity Daman Commission vs Begum Khaleda Zia alias Khaleda Zia, 70 DLR (AD) 137 Section 426(1)-When a convicted is sentenced to life imprisonment or to a fixed term imprisonment and, on appeal, instead of putting him in confinement, if he is released on bail, then the execution of the sentence remains suspended. Similarly, on preferring appeal, if the convict does not wish to comply with the order of payment of fine or forfeiture of the property and prays to the appellate Court for its non- payment or non-forfeiture and, accordingly, the appeal Court allows the prayer, then it is said that the execution of sentence as to payment of fine or forfeiture is suspended. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 Section 426(1)- Suspension of execution of sentence' means 'suspension of sentence. Conviction does not have the feature to be executable. Conviction is merely the findings of the Court. Because of securing suspension of sentence, thus, Conviction does not go away or does not become suspended. conviction remains intact until set aside on appeal. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 Section 426(2)-When any statute prescribes conviction as a disqualification for contesting the local/national elections, for applying in any Government/non- Government service, for holding/ remaining/continuing in any Government /non-Government post, with the civil consequences it acquires the feature of execution and, thereby, it operates in its full rigour until and unless its operation is stayed by the appellate Court or the High Court Division. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 Section 426(2)-While the appellate Court appears to be incompetent to suspend the operation of conviction due to not being empowered by section 426 of the Code or not being equipped by any other law, the High Court Division must not be seen to be lacking power to grant relief to a convict appellant who is in dire need of an order of stay of operation of the conviction towards enabling the convict to secure qualification for contesting the local/national elections, for applying in any Government/non- Government service, for holding/remaining in any Government/non-Government post etc. for a very short period, if the appeal cannot be disposed of quickly and the loss the convict-appellant would suffer is not compensable. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 Sections 426(2) and 561A-The High Court Division may grant stay of con viction under sections 561A read with section 426(2) of the Code only in exceptional and rare circumstances where non-grant of stay would lead to injustice and irreversible consequences. Mamun (Md) @ Walid Hasan vs State, 70 DLR 148 S. 427A (2)-Appeal against inadequacy of sentence. Power of the High Court Division in appeal and revision. In this case appeal lay to the Sessions Judge but the appellant without filing appeal before the Sessions Judge filed an appeal before the High Court Division long after the period of limitation. The appeal was thus incompetent and as such the High Court Division was wrong in entertaining the appeal and in enhancing the sentence passes by the trial Court. With two exceptions, power exercisable by the High Court Division in appeal and revision are similar. In appeal a sentence may not be enhanced whereas this may be done in revision In revision an acquittal shall not be converted into a conviction whereas this may be done in an appeal against an acquittal. G.M.M. Rahman Vs. The State, 2 ALR (2013)-AD-175. Section 428—Additional evidence—Section 428 may be resorted to when such evidence either was not available at the trial or the party concerned was prevented from producing it, either by circumstances beyond its control or by reason of misunderstanding or mistake. Rajab Ali Zulfiqar vs State 45 DLR 705. Section 428—The purpose of this section is to allow additional evidence at the appellate stage only and not to give an opportunity to the prosecution to fill up the lacuna in its case. Bakul vs State 47 DLR 486. Section 428-Adjustment made at this stage after his retirement refund of money at latter stage, documents which has been produced after disposal of the case will not at all help the convict-appellant in order to absolve from the charge. AKM Mosharraf Hossain vs State, 65 DLR 564 Section 428-Before holding the trial news paper publication was made regarding the absconding accused and that news paper publication is lying with the record. After arrest by the police, convict was sent to Jail, wherefrom he filed the Jail Appeal putting his signature in the Vokalatnama. The signature of convict in his Vokalatnama and the signature put in the admit card are same and identical and, as such, there is no doubt that the admit card belongs to convict. State vs Jabed Jahangir, 66 DLR 579 Sections 428 & 561A—As the present application is an application under section 561A, there is no scope of taking further evidence under section 428 of the Code of Criminal Procedure. Shuinya @ Suruj Ali vs State 53 DLR 527. Section 431—The power of the Court of law to reconsider fine which the deceased appeallant was entitled and if the right is taken away that will be denial of the principle of natural justice of the heirs and legal representative which their predecessor had. S Taibur Rahman vs State 55 DLR 709. Sections 432, 424 and 367(1)—It is well- settled principle of law that for disposal of Criminal Appeal presence of an Advocate is not essential and the Appellate Court can dispose of the appeal on mere writing a judgment according to provisions of section 667(1) of CrPC. Abdul Basher vs State 40 DLR 248. Section 435—A Court is undoubtedly inferior to another Court when an appeal lies from the former to the latter, State vs Auranga @ KM Hemayatuddin 46 DLR 524. Section 435 read with section 439- The High Court Division as a revisional court ought to have disposed of the criminal revision on the basis of the evidence already on record. The order of rehearing by the appellate court below is found to be uncalled for, particularly after a decade. Helal Uddin (Md) vs State (Criminal) 75 DLR (AD) 178 Ss. 435 and 439-Instead of filing the application for bail, she ought to have challenged the cancellation of her bail before the High Court Division in its criminal revisional jurisdiction. Nazim Ahmed Vs. State (Criminal), 18 BLC (2013)-HCD-511 Section 435—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60. Sections 435 and 436—Sessions Judge called for records of the case triable under the provisions of the Special Powers Act from the Court of the Magistrate in exercise of his power, under sections 435 and 436 CrPC and took cognizance of the offence after converting himself into a Special Tribunal—This is not contemplated by law. Satya Ranjan Sarda vs State 42 DLR 142. With regard to the maintainability of the present revisional application, we are of the view that the application is maintainable in revisional form since the impugned under is void ab-initio. Moreover, this court has got power to adjudicate the propriety and legality of an order passed by any inferior Criminal Court even, suo-muto. [73 DLR 335] Sections 435/439—A second revisional application by the self-same party is not barred to challenge an illegal order after dismissal of his earlier revisional application for default and not on merit. Learned Advocate for the petitioners did not argue on the question of merit of the impugned order. So his contention as to limitation in the facts and circumstances of the case does not appeal to us. In the above facts and circumstances were are of the view that revisional application filed beyond the period of limitation though should not be encouraged, cannot debar the Court from setting aside an illegal order of the subordinate Court in the interest of justice. Anower Hossain vs Md Idrish Miah 48 DLR 295 Sections 435 and 439—Interpretation of Statute—The expression “if the accused is in confinement” in section 439 CrPC is used as a condition precedent to bail. Abdus Samad vs State 41 DLR 291. Sections 435/439—An application under section 439 of the Code of Criminal Procedure by an informant in a Sessions Case against order of discharging an accused is maintainable in spite of the position that the State has not filed such application. Abdur Rahman Kha vs State 56 DLR 213. Sections 435, 438 and 439A—The legislature has consciously kept section 438 alive although the Sessions Judges have been invested with the powers under section 439A to make final orders enabling the litigants to choose the forum as to whether he would resort to the forum under section 438 or under section 439A with the risk of finality of the order that may be passed. Abdul Ahad@ Md Abdul Ahadvs State 52 DLR 379. Sections 435 & 439—Revisional Power, scope of—Question whether the law laid own in I section 5(1)(e) of the Act, 1947 and section 4 of the Anti-Corruption Act, 1957 is discriminatory and violative of the provisions of the Constitution is not within the scope of the present Rule to be determined. HM Ershad vs State 45 DLR 533. Sections 435 and 439—To be released on bail a person must be in custody or in some sort of confinement. Abdus Samad vs State 41 DLR 291. Sections 435/439 and 561A—The High Court Division exercising power under section 561A of the Code is not supposed to embark upon an inquiry to ascertain sufficiency, reliability and admissibility of evidence—However, if a conviction order is passed absolutely without any legal evidence, it can be looked into in the present forum to secure ends of justice. Rezia Khatun vs State 56 DLR 208. Sections 435, 439 & 561A—Power under sections 439 and 561A is different in nature— Section 439 read with section 435 refers to inferior Court under High Court Division— Exercise of power under section 561A is not limited to the inferior Court only. Jagodish Chandra Dutta vs MH Azad 41 DLR 257. Sections 435 & 439A—The law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made can themselves overtake the law by ingenious contentions. It is true that in criminal matters the accused should get all protection under the law but it is also important that the law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made before the Court by a statutory authority can themselves overtake the law by resourceful enterprise in raising ingenious contentions in order to frustrate the prosecution on the threshold. The Court must strike a balance. We are of the view that the learned Sessions Judge failed to maintain that balance which has been restored by the High Court Division. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189. Sections 435, 438 & 439A—The Sessions Judge would have been well-advised to reject the revision petitions upon the view that the objection as to alleged lack of authority should be raised before the Court taking cognizance. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189. Sections 435, 438 & 439A—When the SEC was making a complaint of fraudulent acts against certain companies and their directors on the basis of an enquiry undertaken by an expert committee, a Court would be well-advised not to try to be more expert at the complaint stage because otherwise it will be an example of nipping the prosecution in the bud. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189. Section 436—Sessions Judge’s power to order enquiry—The Sessions Judge commits no illegality in setting aside the order of discharge of the accused passed by the Magistrate and in directing the latter to send the case record to the Court of the Sessions Judge along with statements recorded by the police. The order is within the scope of section 436 CrPC. But the Sessions Judge’s further order giving direction to send the accused for trial being in excess of his jurisdiction cannot be sustained. The Magistrate is left with his absolute discretion in the matter of taking cognizance of the offence and sending the accused-petitioners to the Court of Sessions for trial after holding further enquiry according to law. Motaleb vs State 43 DLR 519. Section 436- The proviso of section makes provision for showing cause to an accused person who has been discharged, but consequent to dismissal of a complaint case by the Magistrate under section 203, when the complainant files revision before the Sessions Judge, there is no requirement in the law for affording opportunity of hearing to the accused person. Dr Akhtar- uz-zaman vs State, 70 DLR 513 Section 436—When the order of discharge has been made without entering into the merit of the case, a fresh complaint or a fresh first information report against the same accused person can be maintainable, when fresh materials come forward which were not available at the time of previous investigation or enquiry. Rasharaj Sarker vs State 52 DLR 598. Section 374-Sentence other than death will be against the mandate of Legislature and also will be not only grave injustice to the victim of crime but also will encourage a criminal. State vs Moslem 55 DLR 116. Section 374-The two petitioners being members of the Police Establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and, as such, they were rightly served, sentencing them to death and so no leniency ought to have been shown to them. We are unable to see eye to eye to the order of modification of their sentence. ASI Md Ayub Ali Sardar vs State 58 DLR (AD) 13. Section 374-The Deputy Attorney-General could not offer any explanation for non-filing of the GD Entry nor could he controvert the argument of the defence lawyer regarding leaving of the police station by the police personnel for arrest of a dacoit without any command certificate and any arms whatsoever. Nor the prosecution could offer any explanation regarding non-examination of the SI, a vital witness in the case. All these facts create a strong doubt about the truth of the prosecution story. State vs Mukul @ Swapan 58 DLR 40. Section 374—The prosecution has been able to bring home the charge under section 302 of the Penal Code against the accused-person. He deserves extreme punishment in the present case— The trial Court has not committed any mistake in recording conviction and awarding capital sentence. Accordingly, the impugned judgment and order of conviction and sentence does not call for interference. State vs Maku Rabi Das 58 DLR 229. Section 374—In view of the fact that the condemned-prisoner has been experiencing the agony of death in his death cell for more than 3 years, it is proper to commute his sentence of death to imprisonment for life. State vs Md Ershad Ali Sikder 55 DLR 672. Section 374—It is, also, not possible to lay down any cut and dried formula in imposing proper sentence but the object of sentencing should be to see that the crime does not go unpunished and the society have the satisfaction that justice has been done. In imposing sentence both mitigating and aggravating circumstances are to be taken into consideration and a corelationship has to be drawn up. State vs Mir Hossain alias Mira 56 DLR 124. Section 374—Non-appealing accused Nizamuddin, has not filed any appeal and he is still in custody. Justice must not be stopped to the deprivation of anyone and its flow be allowed to continue, so that every-body may share justice equally. In that view of the matter, the entire order of conviction and sentence be set aside and the non-appealing accused is also entitled to get the benefit of the order. Zamir Ali (Md) vs State 59 DLR 433. Section 374—Accused Fazilutennessa made a confessional statement which was not only true but also voluntary. A person confesses from remorse. Therefore, she could realise what she had done with her husband, Moreover, she has been languishing in the condemned cell since 14- 2-2000—the above fact is a mitigating circumstance and, as such, her death sentence should be commuted to orte for imprisonment for life. State vs Saiful Islam 56 DLR 376. Section 374-The mere fact that the victim luckily survived for weeks on account of treatment in the hospital is no ground to award lesser sentence. ErshadAli Sikder vs State 57 DLR (AD)75. Section 374—Imposition of proper and appropriate sentence is amalgam of many factors, such as nature of offence, circumstances mitigating and aggravating. A balance sheet of aggravating and mitigating circumstances has to be drawn up before subjecting a person to a sentence. State vs Anjuara Khatun 57 DLR 277. Section 374—Punishment— Mitigating circumstance— The case does not show that the accused used any heavy or sharp cutting or lethal weapon or acted with cruelty in committing the murder. There is also nothing on record that the murder was preplanned and cold-blooded. The accused-appellant is sentenced to suffer imprisonment for life for the offence under section 302 of the Penal Code. Rafiqul Islam Mollah vs State 57 DLR 581. Section 374—Delay in disposal—The appellants never made any endeavour to dispose of the appeals either in the High Court Division or in the Appellate Division. It was the State that frequently prayed for fixation of the death reference in the High Court Division and on its prayer a Bench was constituted for hearing the death reference. After the death reference was disposed of by the High Court Division, the appellants after filing leave petitions did not take any step for hearing of their petitions. It was only on the prayer of the State that the leave petitions were heard and the appeals were also heard. Major Bazlul Huda vs State 62 DLR (AD) 1. Section 374—The death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region, which was ante-mortem and homicidal in nature and it is ex-facie clear that the petitioner strangled the victim with the intention of causing her death and there is no circumstances that may impel the Court to take a lenient view in commuting the death sentence as there is no mitigating or extenuating circumstances on record for the purpose of commutation of the death sentence, rather all the circumstances are aggravating. Alam Uddin vs State 62 DLR (AD) 281. Sections 374 & 164—Part of the confessional statement found true may be accepted by the court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted. Learned Sessions Judge could reject a part of the confessional statement iF he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court finds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121.



Section 235-The various acts were done in pursuance of a particular end in view and they were connected together by proximity of time, unity of purpose and continuity of action and those acts formed parts of the same transaction within the meaning of section 235, CrPC. (Per Siddiqur Rahman Miah J: agreeing). Zahed Hossain vs State 61 DLR 386.



Sections 235 and 239-The provisions of section 235 and 239 of the Code vest a discretion with the Court to try offences of the kinds indi- cated therein jointly in the circumstances men- tioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. (Per Siddiqur Rahman Miah J: agree- ing). Zahed Hossain (Md) vs State 61 DLR 386.



Sections 235-237-Where from the facts of the case it is not clear which of the several offen- ces has been committed, the accused may be charged with having committed all or any of such offences and he may be convicted of the offence which he is shown to have committed, although he was not charged with it. Parveen vs State 51 DLR 473.



Sections 235-237 and 403-When facts of the case are such that it is doubtful which of the several offences has been committed the accused may be charged with having committed all or any of such offences; and after trial for one such offence the accused may be convicted for the other offence even though he was not charged thereof In the instant case "robbery" and "un- authorised possession of fire arms" are not offences of the same nature contemplated in sec- tions 236 and 237 (1) CrPC, but these are two distinct offences for which a person may be charged for each of them as provided in section 235(1) CrPC. Arfan Ali vs State 42 DLR (AD) 22.



Sections 235 and 239 Section 235 empo- wers trial of a person for more offences than one if those are committed in the same transaction but section 239 provides for persons accused of diffe- rent offences committed in the course of the same transaction. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.



Sections 235 and 239-Whether a series of acts are so connected as to form the same transac- tion is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formuia of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction. State vs Md Abu Taher 56 DLR 556.



Section 374-Before awarding punishment a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. Considering the depraved and shameful manner in which the offence has been committed, the mitigating factor would not outweigh the aggravating factors. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8 Section 374 We fully agree with the observations except the observations that "Life imprisonment is the Rule and death sentence is an exception." Because in our jurisdiction our apex Court in many cases has decided in a reverse way. Gias vs State (Criminal) 75 DLR (AD) 195 Section 374-In the given circumstances only the death penalty would be the proper punishment for the appellant Gias which will serve the ends of justice. Gias vs State (Criminal) 75 DLR (AD) 195 Sections 374 and 376-The appellants are in death cell for about 17 years and during that period the appellants have suffered mental agony, and that the father of Rabiul having nabbed him handed over to the villagers on coming to know about his involvement with the commission of the offence, justice would be best served if the sentence of death is commuted to one imprisonment for life.Milon @ Md Milon vs State (Criminal) 75 DLR (AD) 164 Sections 374 and 376-The convict Rana is in the condemned cell for more than 14 (fourteen) years suffering the pangs of death. Justice would be sufficiently met if the sentence of death of Rana be commuted to one of imprisonment for life. Gias vs State (Criminal) 75 DLR (AD) 195 Sections 374 and 376 The condemned-prisoner is a young girl of 19 years of age. Her mental condition was not developed to that level of understanding to know the consequence of the act. She is a helpless young girl, has been in jail since her arrest on 20-6-2011. Clemency of penal justice always helps a young perpetrator for his/her rectification. Taking her tender age into consideration, it is appropriate and justice will sufficiently be met if her sentence is reduced to imprisonment for life. [73 DLR 471] Sections 374-376—There was quarrel between the accused and his mother on the day preceding the occurrence as he pressed for sale of a cow and the sale proceeds and the quarrel led to the occurrence of murder—this apart he is a young man of only 20—In such circumstances his death sentence is commuted to that of life imprisonment. State vs Md Jamaluddin 50 DLR 67. Section 374- The appellant has been in death cell since 12.08.2002 and by the judgment he suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the facts of the case, justice would be best served if the sentence of death awarded to the appellant is altered into one for imprisonment for life with fine, of taka 10,000.00 only, in default, to suffer rigorous imprisonment for 6(six) months...... Momtaj Ali @ Babul =VS The State, [1 LM (AD) 557] Section 374, 376 & 537- Even if it is assumed that the Session Judge has not taken cognizance of the offence after the case was 'sent' by the Magistrate, the trial of the accused shall not be vitiated in view of section 537 of the Code which provides that 'no finding, sentence, or order passed by the court of competent jurisdiction shall be reversed or altered under Chapter XXVII on appeal or revision of account.... Chapter XXVII contains sections 374-380. Section 374 provides the sentence of death to be submitted by a court of Sessions to the High Court Division for confirmation. Section 376 empowers the High Court Division to confirm a death sentence or annul a death sentence. So, whenever a death sentence is passed by a court of session, it is sent to the High Court Division for confirmation. The High Court Division has power to confirm the sentence or annul the sentence and by reason of any defect or error in the procedure, death sentence cannot be vitiated. So, the conviction of the accused cannot be set aside by reason of the alleged defect. .....Mufti Abdul Hannan Munshi =VS= The State, (3 LM (AD) 566] Section 374 & 376- The nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. We do not find any Substance in the petition. Thus, the review petition is dismissed....... Shahidul Islam @ Shahid =VS State, [4 LM (AD) 428] Ss. 374 and 376-Commutation Sentence-They were not laying down any precedent which can be applied to every case when a question of commutation of death sentence was considered on account of age of the accused. Rahmat Ali Vs. State (Civil), 18 BLC (2013)-AD-109. S. 374 and 376-The criminal act of the condemned appellants is tribunal, dastardly, premeditated, gruesome, cold blooded and shocking to our conscience. Khorshed Vs. State, 18 BLC (2013)-HCD-241. Ss. 374 and 376-The circumstances are aggravating and not mitigating or extenuating. The High Court Division should not hesitate to use Sword of Justice with the utmost severity to the full and to the end. Khorshed Vs. State, 18 BLC (2013)-HCD-241. S. 374-Mr. Helaluddin Mollah has advanced argument to the effect that both the tribunal and the High Court Division have failed to appreciate and comprehend the evidence and the facts and circumstances properly and as a result have failed to take a just decision in his case. The learned advocate has argued that there is no acceptable evidence at all to prove the case against the accused petitioner, that the so-called confessional statement of the accused petitioner is not voluntary and true at all, that there are so many facts and circumstances on record which tell strongly against the truth of the so-called confessional statement. The learned advocate has argued that both the courts did not consider at all about the voluntariness of the so-called confessional statement of this accused petitioner: that the facts and circumstances on record proved that the so-called confessional statement of this accused was obtained under torture and coercion. Mr. Md. Helaluddin Mollah, the learned advocate has made submissions to the effect also that there are so many contradictions between the F.I.R. and the evidence adduced by prosecution which made the prosecution case not believable at all The learned advocate has pointed out that in the F.I.R. it was alleged that the deceased made dying declaration to the effect that her husband the accused threw acid on her but during trial the prosecution witnesses stated that the deceased made dying declaration to the effect that the accused set fire on her. The learned advocate has argued that this is a gross contradiction which makes the whole prosecution case unbelievable and that both the courts below have failed to take into consideration this material contradictions in the prosecution case. The learned advocate for the petitioner has made further submissions to the effect that the 15th amendment of the Constitution has given right to the condemned prisoner to prefer appeal against him sentence of death as of right and as such this condemned prisoner to prefer appeal against his sentence of death as of right and as such this condemned prisoner petitioner though the death sentence was confirmed before 15 amendment of the Constitution may be favoured with this privilege of this amended Article 103 of the Constitution for the ends of justice and also to honour the sprit of the Constitution..(10) Md. Shah in Qadir Vs. The State (Criminal), 10 ADC (2013)-Page No. 534. S. 374 read with Penal Code, 1860; S. 302 It is the definite case of prosecution that the deceased Nurjahan was raped to death then her dead-body was thrown to the river Meghna. So if we believe the evidence of P.W.11 for a moment then the prosecution case fails and if the prosecution case be sustained for sometime then the evidence of P.W. 11 should be left out of consideration. Therefore, we failed to discover any definite prosecution case against the condemned prisoners the prosecution measurably failed to prove the charge against the condemned prisoners beyond all reasonable doubt. Thus the reference having no merit fails. The State & Ors Vs. Abdul Quiyum & Ors, 21 BLT (2013)-HCD-169. Section 374-As there is no conclusive evidence as regards the principal assailant, ends of justice would be met if the sentence of the petitioners is commutated to imprisonment for life. Tapan vs State, 66 DLR (AD) 174 Section 374- Condemned Prisoner- Condemned prisoners are supposed to walk to the gallows but unfortunately they are not getting opportunity to defend them selves properly. Walking to the gallows without an opportunity of being defeded by a competent lawyer is the worst form of violation of human rights. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386 Section 374-Ends of justice demand that the accused Saiful be awarded the extreme penalty of death. Akbar Ali Lalu alias Roni vs State, 66 DLR 134 Section 374-In sentencing process, two important factors come out which shall shape appropriate sentence (i) Aggravating factor and (ii) Mitigating factor. These two factors control the sentencing process to a great extent. But it is always to be remembered that the object of sentence should be to see that the crime does not go unpunished and the society has the satisfaction that justice has been done and court responded to the society's cry for Justice. State vs Bidhan Chandra Roy, 66 DLR 500 Section 374- Since the accused brought to the notice of the Sessions Judge about the insanity of the accused right from his beginning, the Sessions Judge should have obtained opinion from professional person before giving the decision that the accused was not insane. In any view of the matter, the Sessions Judge should not have proceeded with the case and recorded the evidence of the prosecution witnesses before giving decision on the point of insanity of the accused. State vs Md Sajjad Ali, 67 DLR 161 Section 374-Delay in the disposal of the case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was pre- meditated senseless, dastardly and beyond all human reasonings. Shahidul Islam @ Shahid vs State, 70 DLR (AD) 68 Sections 374 and 376-Condemned- prisoner spent about 4 years in the condemned cell, and 13 years have elapsed since the judgment of the High Court Division, which commuted her sentence of death to imprisonment for life. State vs Romana Begum alias Noma, 66 DLR (AD) 183 Sections 374 & 376-High Court Division is competent to convert the case into suitable section of the Penal Code and dispose of the appeal on its merit. State vs Md Golam Sarwar @ Ripon, 67 DLR 407 Sections 374 and 376-It is admitted that accused husband had a son aged about 14 months at the time of occurrence and previous record indicates that the con- demned-prisoners in not the hardened criminal. Considering the attending cir- cumstances, we think for ends of justice if the sentence of the condemned accused is altered to one of imprisonment for life. State vs Imran Ali, 69 DLR 135 Sections 374 and 410-True, no appeal was preferred against the order of acquittal of the accused persons on the charge of criminal conspiracy but, this itself is not a legal ground to shirk its responsibility even if there are sufficient evidence in support of the charge. (SK SINHA, J. AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Sections 374 and 376-From the nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitiga ting or extenuating circumstances on record for commutation of the sentence of death. Shahidul Islam @Shahid vs State, 70 DLR (AD) 68 Sections 374 and 376-Since heinous crime was committed in cruel and diabolical manner, death sentence is justified punishment. It is true death for death may be, to some extent, inhuman but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life. The nature of the crime reveals that the petitioner is a menace to the society and sentence of imprisonment would be altogether inadequate. Shahidul Islam @ Shahid vs State, 70 DLR (AD) 68 Sections 375-376 It has been well proved by sufficient tangible evidence that the condemned-prisoner Md Abu Taher @ Choru Miah and Zahirul Islam @Zahir cannot be escaped from their liability in commission of the dacoity along with the heinous gruesome killing of the deceased Tofazzal and there is no such mitigating extenuating circumstances by which their sentence can be commuted but in respect of Abdus Salam Liton who only participated in the occurrence of dacoity with other dacoits, deserve compassionate view in commuting his death sentence and reducing to imprisonment. [73 DLR 18] Section 376- The convict has now been in the condemned cell for more than 9/2 years due to no fault of his own. The length of period by now can be taken as a circumstance, when there are other extenuating circumstances, to commute the sentence of death of imprisonment for life" Nazrul Islam (Md) va State, 66 DLR (AD) 199 Section 376- Commutation of death sentence -The accused is languishing in the death cell for the last 6(six) years. The attending circumstances impel us to consider his sentence as well andends of justice will be met if his sentence is commuted into the sentence of imprison- ment for life from the death sentence. State vs Zakaria Kabiraj, 64 DLR 523 Section 376-Delay-Mere delay is not a legal ground for commutation of the sentence. Rasedul Islam (Md) vs State, 68 DLR (AD) 114 Section 376-The petitioner has no significant history of prior criminal activity and that he was aged 14 years at the time of commission of the offence and 16 years at the time of framing of charge. The petitioner has been in the condemned cell for more than 14 years. Death sentence of the petitioner be commuted to imprison- ment for life. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh, Secretary, Ministry of Home Affairs, 68 DLR (AD) 1 Section 376-The condemned- prisoner has suffered in the condemned cell for over 10 years and 8 months and thus the length of period can be taken as one of the reasons to commute the sentence of death to one of imprisonment for life. Sikha Rakshit vs Paritosh Rakshit, 70 DLR (AD) 1 Section 376-Relying on the circum- stantial evidence corroborated by extra- judicial confession rightly fund guilty under sections 302/34 of the Penal Code and awarded them the sentence of death but we are of the opinion that the ends of justice would be met if the "sentence of death" is commuted to "imprisonment for life" to those convicts. State vs Jashim Uddin alias Iqbal, 70 DLR 211 Section 376 The accused was about 18 years of age at the time of commission of offence and taking his tender age into consideration, justice would sufficient by be met, if his sentence is reduced to imprisonment for life. [73 DLR 411] Section 376—Sentence—Commutation of death sentence—Delay of about two years or so in the disposal of the Death Reference Cases and the Jail Appeal in the High Court Division, cannot by itself be a ground for awarding lesser sentence. Abed Ali vs State 42 DLR (AD) 171. Section 376-There is nothing or record to show that there was (any real) love between the appellant and deceased Dilara. The appellant being not a jilted lover, it is difficult to commute the sentence of death to one of imprisonment for life. Further, soon before the occurrence there was no provocation from the prosecution side and there was no occasion for the appellant to show any emotional imbalance and disequilibrium. On the contrary, the evidence on record shows that the appellant with a premeditated and pre-planned manner entered into the hut of the deceased with a dagger and killed her. The trial Court as also the High Court Division found no mitigating circumstances. Nor did we. Abdul Quddus vs State 43 DLR (AD) 234. Section 376- It is the duty of the Court to respond to the cry of the society and to settle what would be a deterrent punishment for an abominable punishment. Two widows, having had no male member of their families and had been maintaining their livelihood by selling sarees in different villages, were somehow brought in a field in the late night and the convicts not only raped them but also killed them mercilessly. Both the victims died with a painful death. Considering the nature of crimes, we do not find any mitigating circumstances to commute the sentence. Aziz @ Azizul @ Azid vs State (Criminal), 73 DLR (AD) 365 Section 376—Death sentence, commutation of—Death sentence not executed after more than four years from the date of confinnation of the sentence. Appellant suffered a prolonged agony for laches of others. Death sentence commuted to one of life imprisonment. Wajear Rahman Moral vs State 43 DLR (AD) 25. Section 376—The condemned-prisoners being in the cell for 4 years 7 months in the agony of death sentence hanging over their neck, their death sentence is commuted to life imprisonment. State vs Kamal Ahmed 49 DLR 381. Section 376—Provocation in the mind of the condemned-prisoner which was a continuous one because of illicit intimacy between the deceased and the wife of the condemned-prisoner led to the killing of the deceased victim. So the sentence of death should be altered into sentence of imprisonment for life. Shahjahan vs State 51 DLR 373. Section 376—Since this is not the rarest of the rare cases, ends of justice will be met if the sentence of death of accused Kashem is converted into one of imprisonment for life. State vs Anowar Hossain Pinto alias Anowar Hossain 61 DLR (AD) 108. Section 376—In view of the omissions and laches on the part of the State defence lawyer, the submission of the learned Advocate on point of sentence deserves consideration. State vs Md Khosbar Ali 52 DLR 633. Section 376—The convict is a young man of 24 years and there is nothing on record that he is a habitual dacoit—He has been suffering the agony of death sentence for the last 3 years— Therefore, ends of justice would be met if the sentence is reduced and commuted to one of imprisonment for life. State vs Rafiqul Islam 55 DLR 61. Section 376—Commutation of death sentence—Mere delay is not a legal ground for commutation of a sentence. (Per Md Tafazzul Islam J). Major Bazlul Huda vs State 62 DLR (AD) 1. Section 376—Commutation of death sentence —There is no merit in the contention that uncontrolled and unguided discretion of the Judges to impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution. If the Law has given to the Judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime it will be impossible to say that there would be at all any discrimination since facts and circumstances one case can hardly be the same as the facts and circumstances of another. Major Baziul Huda vs State 62 DLR (AD) 1. Section 376-According to our provision the Court has been left’ with the discretion on the facts of the given case whether or not a set sentence of death should be awarded, and in case of awarding a sentence of death the Court is required to assign reason. The Court is of course keeping in mind while awarding the extreme sentence whether there is mitigating circumstances to exercise such discretion. The mitigating circumstances in the exercise of Courts discretion as analysed in Jogmohan’s case (AIR 1971 SC 500) are undoubtedly relevant circumstance and might be given weight in the determination of sentence. (Per SK Sinha J).Major Baziul Huda vs State 62 DLR (AD) 1. Section 376—Although there is no evidence against all the accused persons of directly participating in the carnage but it should be borne in mind that for the killing of the sitting President, all the accused persons with a view to attainment of the object played different roles. Without jointly operating in concert the criminal object could not have been executed. It was not possible to bring about the result of the criminal object without support of all. In view of the matter, all the conspirators who actually participated and acted the crime do not deserve any leniency in the matter of sentence. (Per 5K Sinha J) Major Bazlul Huda vs State 62 DLR (AD) 1. Section 376—Communtation of death sentence—The accused is not a hardened criminal. The death of the deceased was caused by him in sequel of bitter matrimonial relationship. The caused the haematoma with any hard substance on the occipital region of the head of the deceased which resulted her instantaneous death. The accused has three minor children and an invalid first wife. Justice will be met if the sentence of death awarded to the accused is commuted to imprisonment for life. State vs Azam Reza 62 DLR 399. Section 376(a)—The fact that the condemned-prisoner committed the murder under influence of some provocation should not be ignored while considering the question of sentence. State vs Hamida Khatun 50 DLR 517. Section 376(a)—Since Hamida did not play the principal role in murdering her husband and there is no evidence to show that she along with Abu Taher planned in advance to kill her husband in furtherance of common intention, ends of justice would be met if the sentence of death is reduced to one of imprisonment for life. State vs Hamida Khatun 50 DLR 517. Section 376-Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose-punitive, deterrent and protective. Giar vs State (Criminal) 75 DLR (AD) 195 Section 376-The fact of prolonged incarceration together with the discussion that we made fortified with the recently passed decision of this Division can be considered as a mitigating circumstances and for that reason we are inclined to modify the order of sentence and commute the sentence of death to that of imprisonment for life. Anowar Talukder vs State (Criminal) 75 DLR (AD) 221 S. 376-Keeping in mind the youth of the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than 8.5 years, ends of justice will be sufficiently met if them sentence of death is commuted and altered to one of imprisonment for life. Rahmat Ali @ Shukkur Vs. The State, 2 LNJ (2013)-AD-125. S. 376-The condemned-prisoner was aged about 28 years when he was examined under Section 342 Cr.P.C. The record indicates that the condemned prisoner is not a hard criminal he cannot be at all characterized to be a menace to the society. Taking an account of aggravating and mitigating circumstances, ends of justice will be met if death sentence is altered to one of imprisonment for life, Condemned prisoner Nurul Kabir, thus stands sentenced to imprisonment for life. The State Vs. Nurul Kabir, 2 LNJ (2013)-HCD-297. Ss. 376, 464, 465 and 467-It appears that before commencement of trial the accused was sick and not fit for facing trial and as such the accused was seriously prejudiced by the trial of the case for which the impugned judgment and order of conviction and sentence is set aside and the case is remanded to the Court of Sessions, Rajshahi for new trial. The State Vs. Md. Moksed Ali, 2 LNJ (2013)-HCD-429. S. 376-Remanded to the Court of Sessions for holding new trial-appellant being lunatic: Held: It is a matter of great regret that the learned Judge of the trial Court in his judgment dated 24.05.2007 observed in the following manner: ইতিপূর্বে আসামী পাগল ছিল কিনা তাহা বিস্তারিত আলােচনা হইতে আদালত সিদ্ধান্তে আসিয়াছে যে, ঘটনার সময় আসামী মানসিক রােগী বা পাগল ছিল না। The aforesaid observation is absolutely erroneous inasmuchas there is no finding of the learned Judge regarding physical and mental condition of the accused at the time of trial. Moreso, in such situation earlier the learned Sessions Judge was not empowered by law to transfer the case to the second Court of Additional Sessions Judge, for holding trial without obtaining any opinion from the concern authority regarding physical and mental condition of the accused. The learned Judge of the trial Court also without collecting such report concluded the trial and convicted the accused as aforesaid which, in our view seriously prejudiced the accused. So both the learned judges of the Court below including the learned Magistrate violated the mandatory Provisions of law as provided above. Therefore, we hold that the case should be remanded to the Court of Sessions, Rajshahi for holding new trial, pursuant to the Provisions laid down in Section 376 of the Code. The State Vs. Md. Moksed Ali, 21 BLT (2013)-HCD-291. Sections 378 & 429—Hearing of the case by a Third Judge—The language used in sections 378 and 429 of the Code is almost identical. It is said that in hearing a reference or an appeal if the Judges are equally divided in opinion thereon, the case with their opinions shall be laid before a third Judge for hearing, and the third Judge after hearing ‘as he thinks fit’ would deliver his opinion, and the judgment and order would follow such opinion. The expressions “as he thinks fit” used in both the sections are significant. It is the third Judge to decide on what points or in respect of whom he shall hear arguments. This postulates that the third Judge is completely free in resolving the difference as he thinks fit. If he does not think to hear the arguments in respect of any accused of whom the Judges are not divided in their opinions, he may decline to do so. The use of the words “equally divided” in both the sections means the Judges differ in their opinions, in respect of complicity of an accused or on the charge framed against him or them or on any particular point it can be inferred that they are equally divided but in a case where the Judges concur each other in respect of a particular accused and in respect of the offence charged, it can not be said that Judges are equally divided in respect of the accused charged with. Major Bazlul Huda vs State 62 DLR (AD) 1. Sections 378 and 429- Sections 378 and 429 of the Code of Criminal Procedure contemplate that it is for the third learned Judge to decide on what points he shall hear arguments, if any, and, that postulates that he is completely free in resolving the difference as he thinks fit, and therefore, the third learned Judge was competent to decide the case of six convicts of whom the learned judges were equally divided in their opinion and thus the third learned Judge was in agreement with the decision of the learned Judges of the Division Bench in respect of 9(nine) convicts of whom there was no difference of opinion. Major Md. Bazlul Huda(Artillery) -VS-The State (Banga Bandhu Murder Case). (9 LM (AD) 386] Section 386—Fine imposed upon an accused in a criminal proceeding is of the nature of a financial punishment as distinguished from physical punishment and it must be paid by him under all normal circumstances. Ali Hossain vs State 52 DLR 282. Section 386-Fine is a charge upon the assets of the convict as a public dues and it continues to be so even after his death and it is recoverable from his successor-in-interest under the provisions of section 386 of the Code. Ali Hossain vs State 52 DLR 282. Section 386-Fine imposed by the Criminal Court upon an accused is of the nature of a financial punishment as distinguished from physical punishment and it must be realised from him under all normal circumstances. The accused has no option in the matter. Rowshan Ali vs State 52 DLR 510. Section 392—Changing of sections without putting the same before him prevented the appellant from cross-examining the witnesses and giving any counter-defence. Such sort of changes without giving the accused any opportunity for expressing his views is against natural justice and contrary to the established principles of justice delivery system. Abdul Kader vs State 60 DLR 457. Ss. 397, 401-The revisional jurisdiction of a High Court is conferred by the provision of Section 397 read with Section 401 of the Code of Criminal Procedure. While Section 397 empowers the High Court to call for the record of any proceeding before any inferior criminal court within its jurisdiction to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order and such power extends to suspension of execution of any sentence or order and also release the accused on bail, under section 401(3) Cr.P.C. there is an express bar in the High Courts to convert a finding of acquittal into one of conviction. While the revisional power under the code would undoubtedly vest in the High Court the jurisdiction to set aside an order of acquittal the same would not extend to permit the conviction of the accused. The High Court may, however, order a retrial or a rehearing of the case, as may be, if so justified...(8). Kumar etc. Vs. Karnataka Industrial Co-operative Bank, 3 TLR (2013)-Page 447 Section 173 Their irresponsible work and faulty investigation comes in limelight from everywhere, specially with regard to an important document sketch-map of the place of occurrence, when admittedly the homestead of the deceased Tofazzal is the place of occurrence. The investigating officer who prepared the sketch-map and index has mentioned the place of occurrence as residence of Choru Miah. ......(45) [73 DLR 18] Section 173—Section 27 of the Special Powers Act is a departure from the provision if Section 173 of the Code of Criminal Procedure— Special Tribunal alone is empowered to take cognizance of the offence on the report of a Police Officer of the rank of Sub-Inspector and hold trial on the same— Sections 26 and 27 of the Special Powers Act provided for special machinery for investigation and trial by special tribunal. Taslima Begum vs State 42 DLR 136. Section 173-If the investigation officer fails to mention proper Section in charge-sheet or in his report, the court is empowered to take cognizance under proper Section on consideration of the facts and circumstances of the case. Alauddin vs State 54 DLR 564. S. 173-Conduct of the investigating officer-It proves that investigating officer did not investigated the case properly because Pw. 3 stated that he and Kamal together observe the occasion and he hide in Kamal's shop. Now a days we find investigation of the cases has been done ominously without any commitment. The investigating officers should be trained properly so that they can held or done investigation without fear favouring no one and for that we suggesting the Government to open academy for training up investigating officers. The State & Ors Vs. Tajul Islam & Ors 21 BLT (2013)-HCD-218. Ss. 173 and 561A-Section 561A of the Code cannot be utilized to quash an investigation work of the police. Sadek Hossain (Md.) Vs. State, 18 BLC (2013)-HCD-278 Further Investigation Re-investigation Reinvestigation in the name of further investigation is not contemplated in law. There cannot be any re-investigation into a case in which charge-sheet has already been submitted-Cr.P.C. 173 Mubashwir Ali and others Vs. The state, 14BLD(HCD)566 Ref: 37 DLR (HCD) 185, 27 DLR (HCD) 342: 31 DLR (AD) 69, 35 DLR (AD) 127: 36 DLR (AD) 14; 37 DLR (HCD) 182; 34 DLR (AD) 222; 39 DLR (AD) 1: 38 DLR (AD) 41 Cited Further investigation The police has power to make further investigation in respect of an offence even after submission of a charge-sheet in respect of an accused against whom fresh evidence has been collected in the course of further investigation. But the Magistrate has no power to direct further investigation in respect of the accused persons against whom charge-sheet has already been submitted. In the name of a further investigation the police has no power to cancel a charge-sheet in order to submit a final report in respect of an already charge-sheeted accused person- Cr.P.C. 173(38) Golam Mostafa and others Vs. The State, 14BLD(HCD)S81 Ref: 36 DLR 63: 27 DLR 342-Cited Further investigation Further investigation and supplementary charge sheet A superior police officer appointed under Section 158 of the Code may direct further investigation, pending the order of the Magistrate, under sub-Section (2) of Section 173 Cr.P.C. Further investigation may also be held under sub-Section (3B) of Section 173 after submission of police report under sub-Section (1) of Section 173 of the Code, if the Officer in-Charge of the police station obtains further evidence in the case. Further investigation on the prayer of the accused persons is not contemplated in law. Sukhil Kumar Sarkar Vs. The State and ors, 15 BLD (HCD) 311 Further investigation From a reading of Section 156 together with Section 190 (1) Cr.PC it appears that a Magistrate instead of taking cognizance him- self of an offence upon receiving a complaint. may send the same to the police for investigation by treating it as the FLR. The final report submitted by police under Section 173 Cr.PC. is never upon the Magistrate. Instead of accepting the final report, the Magistrate may, either on his own motion or on receipt of a naraji petition from any affected person direct the police to make further investigation Sukhil Kumar Sarkar Vs. The State and ors, 15BLD(HCD) 311 Ref: 27DLR (HCD) 342; 37 DLR (HCD) 185 Cited Further investigation Re-investigation under the garb of further investigation is not contemplated in law Since the police after usual investigation of the case submitted chargesheet against the accused persons the order of the Government, at the instance of the accused, for further investigation of the case by the C.LD. designed to set at naught the already submitted charge- sheet under the garb of further investigation is not contemplated in law. Abu Talukder Vs. The Secretary, Ministry of Home Affairs and others, 16BLD (HCD) 615 Further investigation Section 173(38) of the Code empowers the police officer to hold further investigation in a case where a report has already been submitted and the subsequent report will be treated as a police report within the meaning of Section 173(1) of the Code of Criminal Pro- cedure. Abdus Samad Khan and others Vs. The State and another, 17BLD(HCD) 436 Further investigation Although evidence was forthcoming regarding the complicity of some accused per- sons in the alleged murder but the investigating officer (10.) wrongly excluded them from the charge sheet. The High Court Division directed the police to hold further investigation into their case. Section-173(3B) The State Vs. Monwara Begum, 18BLD (HCD) 102 Malafide vitiates everything Even a malafide investigation cannot be allowed to stand. Mubashwir Ali and others Vs. The State and another, 14 BLD (HCD) 566 Ref: 37 DLR (HCD) 185; 27 DLR (HCD) 342; 31 DLR (AD) 69; 35 DLR (AD) 127; 36 DLR (AD) 14; 37 DLR (HCD) 182; 34 DLR (AD) 222; 39 DLR (AD) 1; 38 DLR (AD) 41-Cited Section 173—There is no scope of filing a final report meaning not sending up any accused for trial and then a separate report for sending up some other accused for trial as one report is sufficient to serve both the purposes. Abdur Rouf @ Rab Howlader vs State 55 DLR 202. Section 173-After investigation in respect of the relevant allegations the police submit a report under Section 173 of the Code. If the report contains sufficient materials for taking cognizance by a Magistrate, it is commonly known as a charge-sheet. But a mere police report has got no bearing on the question of conduct of an accused. Air Marshal Jamaluddin Ahmed (Retd) vs Bangladesh 57 DLR 1. Section 173—Charge-sheet being a police report is not admissible in evidence and as such the case has no legs to stand. This is nothing but an abuse of the process of the Court and, it can be safely held this case is preposterous one and barred by law and outcome of the evil desire of the then ruling Government being dictated and guided by the Four Parties alliance and, as such, continuation of the proceedings will be an abuse of the process of the Court. Dr Kamal Hossain vs State 63 DLR 204. Sections 173, 190—There is nothing either in Section 173 or in Section 190 of the Code providing for ejection or acceptance of a police report. There is also nothing to show that such police report is binding upon a Magistrate. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529. Sections 173 and 190—There is no statutory requirement to lodge suo motu a first information report and register another case thereupon on the result of successful investigation. Abdur Rouf @ Rab Howlader vs State 55 DLR 202. Sections 173 and 205C—The expression “Police Report” in this Section means the report under Section 173 of the Code. It is obvious from Section 205C that when a Magistrate receives charge-sheet and an accused appears or is brought before him, the Magistrate shall send the case to the Court of Session if it appears to him that the case is exclusively triable by the Court of Session. The Magistrate has no option to decide whether charge-sheet was properly submitted. Ibrahim vs State 53 DLR 533. Investigation It authorises the police officer to carry on further investigation into a case even after submission of chargesheet under Section. 173(1) Cr.P.C. if further evidence is avail- able-Code of Criminal Procedure, 1898 (V of 1898) Section. 173(3B) Rahamatullah Vs. The State and another, 16BLD(AD)88 Investigation Further Investigation on the seeking of an accused An accused has no right to apply for further investigation of a case by the C.I.D. after of chargesheet against him. Moreover, this being purely an executive action the Government is free to decide which particular case will be investigated by the C.I.D. Abu Talukder Vs. Bangladesh and others, 16BLD(AD)222 Sections 173 & 439A—So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction. Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this Court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the ambit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future. It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time honored and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of justice and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path. Per Latifur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh. Sher Ali vs Stale 46DLR (AD) 67. Section 173(3A) & (3B)—Before conclusion of trial the Investigating Officer may send further report if new and important evidences are available which may be considered by the Court during trial. Rahmatullah vs State 48 DLR 158. Section 173(3B)—By further investigation the police officer can bring to the notice of the Court additional facts and even prosecute persons against whom charge-sheet was not submitted earlier. But the police in the name of further investigation cannot exclude the persons against whom charge-sheet had already been submitted. In the present case supplementary charge-sheet having been filed against the FIR named accused persons excluded in the earlier charge-sheet we find no illegality in this case. Ear Ali (Md) vs State 47 DLR 405. Police Report The prosecution is required under the provisions of Section 173(3A) of the Code of Criminal Procedure to send the Court the report together with the statement recorded under Sections 161 and 164 Cr.P.C. The accused shall be entitled to get the copies thereof before the hearing under Section 265B of the Code. Non-compliance with this requirement of law causes prejudice to the defence. The prosecution must not play hide and seek. However when the copies of statements under Sections 161 and 164 of the Code are supplied to the accused before hearing under Section. 265B Cr.P.C. the defect is cured. Major (Retd) Bazlul Huda Vs The State, 20 BLD (AD) 236 Police Report While considering the police report (FRT) the Special Tribunal heard the learned Advocates of the parties and on perusal of the case record and the case diary took cognizance of the case on the finding that a prima facie case was made out by the prosecution against the accused persons. Since the Tribunal could not agree with the opinion of the Investigating Officer and took cognizance of the case on the basis of materials before him, the learned Tribunal acted within his competence. No exception can be taken to it. Bilkish Miah Vs. The State, 17BLD (AD) 297 Police Report The Magistrate is not bound to accept a police report submitted under Section 173 Cr.P.C. recommending discharge of the accused persons. If the Magistrate finds that there are prima facie materials on record to proceed against the accused, he may reject the recommendation of the police and take cognizance against accused persons under Section 1190(b) Cr.P.C. Abu Bakar and others Vs. The State, 16BLD(HCD)283 Police Report Under Section 173 (3B) of the Code of Criminal Procedure the Police has a right to file supplementary report or reports, known as a supplementary chargesheet, when it obtains further evidence, oral or documentary, after submission of his report under sub-Section I of Section 173 Cr.P.C. For such a report, he is not required to obtain any permission from the Court. RahmatUllah Vs. The State and another, ISBLD(HCD) 357 Section 173(3B)—The police may make further investigation in respect of an offence after submission of a report and submit a further report or a supplementary charge-sheet in respect of any accused against whom evidence has been collected during further investigation, but the Magistrate has no power to direct further investigation in respect of accused persons against whom the police has once submitted a charge- sheet just to obtain a final report, nor can the police, after further investigation, submit final report in respect of a person against whom a charge-sheet was once submitted. Golam Mostafa vs State 47 DLR 563. Section 173(3B)—When it is not provided in the law itself as to under whose order a Police officer may hold further investigation, no illegality was committed by the Police officer concerned in holding further investigation on the order of his superior officer. Idris alias Jamai Idris vs State 52 DLR 184. Section 173(3B)—A witness once narrating the occurrence without implicating the appellant with the offence in any manner cannot be permitted to depose for the second time with a view to implicating the accused and play double standard. Ruhul Amin Kha vs State 56 DLR 632. Section 173(3B)—The CID committed no error of law in holding further investigation as per provision of Section 173(3B) of the CrPC. Had further investigation been done after the case record was transmitted to the Senior Special Judge after taking cognizance of the offence or passing any order whatsoever then permission of the Special Judge would have been necessary. The police had the power to hold further investigation as per provision of Section 173(3B) of the Code as the provision of this Section is in no way derogatory to the provision of sub-Section 5(6) of the Criminal Law Amendment Act, 1958. Abdus Samad Khan vs State 50 DLR 143. Section 173(3B)—The provision does not have any scope for the Sessions Judge to direct further investigation by the police. The order of the Sessions Judge directing further investigation on an application by the informant is without jurisdiction and is liable to be set aside. Abdul Malek vs Payer Ahmed Chowdhury and State 46 DLR 455. Section 173(3B)—The Government’s decision to withdraw a case from the Criminal Investigation Department after withdrawing the earlier order for investigation by the CID is not illegal. Abu Talukder vs Bangladesh 49 DLR (AD) 56. Section 173(1)(3B)- Section 173(1) (3B) of the Code allows for further investigation and submission of a further report with further evidence, oral or documentary in respect of an offence, even after a report had been forwarded to the Magistrate under Section 173(1) of the Code. Abul Bashar Chowkidar va Abdul Mannan @ Khademul Islam, 66 DLR (AD) 286 Section 173(3B)-The phraseology "further investigation" has been used only in the sub-Section 3B of Section 173, after submission of the police report, at any point of time before pronouncement of judgment, the same may be carried out by the police. Dr Akhtaruzzaman vs State. 70 DLR 513 Section 173(3B)- Upon receipt of the police report submitted by the 10, if the Magistrate finds that the investigation has been done by the IO in a perfunctory manner, the Magistrate may direct further investigation without even receiving a 'naraji application' or 'objection' from the informant-side. If the Magistrate receives a naraji application, s/he may order for further investigation without examining the complainant (informant) under Section 200 treating the same simply as an objection against the police report. Dr Akhtaruz- zaman vs State, 70 DLR 513 Section 173(3B)-While, after submission of the police report, the OC of the concerned police station of his own volition or being directed by his higher authority may investigate further in the case under Section 173(3B) and submit the report of the further investigation (supple- mentary charge-sheet) before the trial Court through the Public Prosecutor at any point of time before pronouncement of the judgment, however, the Magistrate is competent to pass an order upon the police for further investigation only before acceptance of the police report, s/he cannot direct further investigation after accepting the police report, for, the Magistrate becomes functus officio by transferring the case to the trial Court after accepting the police report. Dr Akhtaruzzaman vs State, 70 DLR 513 Sections 173(3B) and 561A-If the result of the further investigation tallies with the findings of the High Court Division, in that event only, the trial Court is allowed to commence trial against the non-charge-sheeted person. While the High Court Division is competent to direct the Magistrate through the trial Court to investigate further into the matter, however, the High Court Division or the trial Court has not been bestowed with the power to directly ask the Magistrate to take cogni- zance. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618 Section 173(3B)- The Durnity Com- Commission is at liberty to hold further investigation into the case and submit report and for that purpose no formal order is needed from the Court, Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380 Section 173(3B)-The investigating officer does not require any permission from the court concerned for further investigation and hence after completion of further investigation filing of supple- mentary charge-sheet does not suffer from any illegality. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115 Section 173(3B)-Final report-narazi -further investigation-The investigation of crime is carried out dehors the mandate contained in the Code containing Sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under Section 173(3B). Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120 Section 173(3B)- Since the order of discharge neither amounts to an acquittal nor to a final order, the accused can be proceeded against for the same offence on the basis of supplementary report submitted on holding further investigation or on the basis of naraji petition filed by the informant/complainant. It is no longer res integra that the Court, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120 Section 173(3B)- Under normal cir- cumstances, if on the basis of fresh evidence a supplementary charge-sheet is submitted, for example by adding name of accused person (s) who had not been included in the initial charge-sheet, there would be no questioning the legality of the supplementary charge-sheet. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115 Section 173(3B)- Although the initial charge-sheet was submitted against only one accused person, upon finding prima facie evidence against him, he still remains an accused in spite of the so called "reinvestigation" of the case whereby the petitioner before us has been additionally named an accused, prima facie evidence having been found against him in the subsequent investigation. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115 Section 173(3B)-Further Investiga- tion-At any stage of the proceeding if it appears that further investigation is required for collection of further evidence the case can be sent for further investigation. The accused petitioners have no authority to challenge the impugned order inasmuchas by the order of further investi- gation, they have not been prejudiced. They without seeking their redress to the lower jurisdiction, have directly sought their redress to this court, revision is not maintainable. Pannu @ Md Pannu Mia vs State, 67 DLR 18 Sections 173(3B) and 561A-If the result of the further investigation tallies with the findings of the High Court Division, in that event only, the trial Court is allowed to commence trial against the non-charge-sheeted person. While the High Court Division is competent to direct the Magistrate through the trial Court to investigate further into the matter, however, the High Court Division or the trial Court has not been bestowed with the power to directly ask the Magistrate to take cogni zance. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618 Section 173(3B)-The Durnity Com mission Commission is at liberty to hold further investigation into the case and submit report and for that purpose no formal order is needed from the Court, Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380 Section 173(3B)-The investigating officer does not require any permission from the court concerned for further investigation and hence after completion of further investigation filing of supple mentary charge-sheet does not suffer from any illegality. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115 Section 173(38)- Under normal cir- cumstances, if on the basis of fresh evidence a supplementary charge-sheet is submitted, for example by adding name of accused person (s) who had not been included in the initial charge-sheet, there would be no questioning the legality of the supplementary charge-sheet. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115 Section 173(3B)-Although the initial charge-sl eet was submitted against only one accused person, upon finding prima facie evidence against him, he still remains an accused in spite of the so called "reinvestigation" of the case whereby the petitioner before us has been additionally named an accused, prima facie evidence having been found against him in the subsequent investigation. Chowdhury Mohidul Haque vs ACC, 67 DLR (AD) 115 Section 173(3B)-Further Investiga- tion-At any stage of the proceeding if it appears that further investigation is required for collection of further evidence the case can be sent for further investigation. The accused petitioners have no authority to challenge the impugned order inasmuchas by the order of further investi- gation, they have not been prejudiced. They without seeking their redress to the lower jurisdiction, have directly sought their redress to this court, revision is not maintainable. Pannu @ Md Pannu Mia vs State, 67 DLR 18 Section 173(3B)-Section 173 (3B) of the Code has given power to the police to submit supplementary charge sheet on further investigation against any person/ persons, even who has earlier discharged on final report, if it obtains further evidence. Salina Islam Beauty vs State, 68 DLR 59 Section 173(3B)-Prosecution is always at liberty to cause further investi gation to be made if it is required for ends of justice. The initial investigating officer, without collecting evidence required by law, simply recommended for discharge on the basis of the statements of the accused persons, recorded under Section 161 of the Code. Commission had no other alternative but to pass an order for further investi gation asking him to unearth facts behind the deal involving huge public money. Anti-Corruption Commission, being a prosecuting agency rightly passed an order of further investigation in a case involving huge public money as has been sub-Section (3B) of Section 173 of the Code empowered by Sections 19 and 20 of the দুর্নীতি দমন কমিশন আইন-২০০৪। Begum Khaleda Zia vs State, 68 DLR 277 Code of Criminal Procedure Section 202—If the prosecution failed to prove that the accused killed the victim on account of dowry, the trial of the accused by the Bishesh Adalat would be without jurisdiction and the proper course would be to send the case back on remand for fresh trial under the general law. State vs MdAbu Taher 56 DLR 556. Sections 202 and 241A—Before framing charge, a Magistrate is required to hear the parties and consider documents submitted along with the record of the case by the prosecution. Abul Kalam Azad vs State 52 DLR 583. Sections 202(1), (2A)—Under section 202(1) and proviso to section 202(2A) of the Code of Criminal Procedure in a case exclusively triable by the Court of Sessions, a Magistrate for the purpose of ascertaining the truth or falsehood of the complaint is to consider the evidence in order to find whether prima facie case is made out or not, but he cannot assess the evidence as if in a trial. Syed Ahmed vs Habibur Rahman 42 DLR 240. Sections 202 and 561A—The Sessions Judge had no jurisdiction to direct the Magistrate for taking cognizance. Even he could not make observation that there was evidence against the petitioner. Basiran Bewa vs State 56 DLR 553. Sections 202(2B), 241A & 265C—Dis- charge under the provisions of these sections is of different character than the discharge of the accused under sub-section (2B) of section 202 where discharge is made before taking of the cognizance. In our view there is no scope for making further enquiry after discharge if the accused under sections 241A or 265C of the Code as the same is made after taking cognizance. Moreover at the time of hearing under section 241 A or under section 265C the Court considers the record of the case, the documents submitted therewith and the submissions made by both parties. So, all necessary materials are before the Court and as the order is passed on consideration of all such materials, there is no scope for passing any order for holding further inquiry. But there is scope for further enquiry when accused is discharged under the provision of sub-section (2B) of section 202 of the Code as the said order is made before taking of the cognizance. Abdul Hal vs State 50 DLR 551. S. 202(2A)-Complainant in his complaint petition cited 8 witnesses but on inquiry examined 4 witnesses only Held, Upon a close reading of proviso of Section 202 (2A) it appears that the Magistrate who inquires into a case shall call upon the complainant to produce all his witnesses and examined then on oath. The provisions of the proviso is a mandatory one but in the present case the Magistrate who inquired into the case violates the provisions of the proviso of Sub-section 2A of Section 202. Md. Arfan Ullah & Ors Vs. The State, 21 BLT (2013)-HCD-28. Sections 202 and 241A-Before framing charge, a Magistrate is required to hear the parties and consider documents submitted along with the record of the case by the prosecution. Abul Kalam Azad vs State 52 DLR 583. Sections 202(1), (2A)-Under section 202(1) and proviso to section 202(2A) of the Code of Criminal Procedure in a case exclusively triable by the Court of Sessions, a Magistrate for the pur- pose of ascertaining the truth or falsehood of the complaint is to consider the evidence in order to find whether prima facie case is made out or not, but he cannot assess the evidence as if in a trial. Syed Ahmed vs Habibur Rahman 42 DLR 240. Sections 202 and 561A-The Sessions Judge had no jurisdiction to direct the Magistrate for taking cognizance. Even he could not make observation that there was evidence against the petitioner. Basiran Bewa vs State 56 DLR 553. Sections 202(2B), 241A & 265C-Dis- charge under the provisions of these sections is of different character than the discharge of the accused under sub-section (2B) of section 202 where discharge is made before taking of the cognizance. In our view there is no scope for making further enquiry after discharge if the accused under sections 241A or 265C of the Code as the same is made after taking cognizance. Moreover at the time of hearing under section 241A or under section 265C the Court considers the record of the case, the documents submitted therewith and the submissions made by both parties. So, all necessary materials are before the Court and as the order is passed on consideration of all such materials, there is no scope for passing any order for holding further inquiry. But there is scope for further enquiry when accused is discharged under the provision of sub-section (2B) of section 202 of the Code as the said order is made before taking of the cognizance. Abdul Hai vs State 50 DLR 551. Section 203-Complaint filed for prosecu- tion of defamation against a party who made such statement in a judicial proceeding-Complaint dismissed under section 203 of the Code of Criminal Procedure without either admitting the complaint petition or examining the complainant. AY Mashiuzzaman vs Shah Alam 41 DLR 180. Sections 203 and 439A-Whether the Sessions Judge has got power under section 439A, Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 of the Code. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. Sections 203, 204(3) & 436-The order of dismissal of the complaint passed under sections 203 and 204 (3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary. The principle, that an order prejudicial to an accused should not be made, without giving him an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76. Sections 203, 205(1) & 436-Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case. Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of com- plaint under section 203 CrPC the informant res- pondent's remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53. Sections 203 and 241A-A decision regarding framing of charge cannot be made with- out considering the inquiry report. Abul Kalam Azad vs State 52 DLR 583. Sections 203, 204 and 436-Since the Magistrate accepted the final reports and dis- charged the accused person as per provisions of law and since specific remedies have been provided in the Code against such discharge, the Magistrate has become functus officio and has no power to revive the proceeding. Rasharaj Sarker vs State 52 DLR 598. Sections 203, 205(1), 436 and 561A- Sessions Judge cannot direct the Magistrate to take cognizance of a case. The power of Sessions Judge is limited to directing a further enquiry into it. It will be for the Magistrate concerned to take or not to take cognizance after the further enquiry. A Rouf vs State 52 DLR 395. Section 203—Complaint filed for prosecution of defamation against a party who made such statement in a judicial proceeding—Complaint dismissed under section 203 of the Code of Criminal Procedure without either admitting the complaint petition or examining the complainant. AY Mashiuzzaman vs Shah Alam 41 DLR 180. কোনও মামলা আমলে গ্রহণের জন্য ম্যাজিস্ট্রেটকে নির্দেশ দেওয়ার ক্ষমতা দায়রা জজ কিংবা হাইকোর্ট বিভাগকে দেওয়া হয়নি। তাদের ক্ষমতা শুধু নালিশ দরখাস্তের বিষয়ে অধিকতর অনুসন্ধান করার নির্দেশ প্রদানের মধ্যে সীমাবদ্ধ। অধিকতর অনুসন্ধানের পর মামলা আমলে নেওয়া বা না নেওয়ার বিষয়টি দেখবেন ম্যাজিস্ট্রেট। ফৌজদারি কার্যবিধির ২০৩ ধারার অধীনে নালিশ দরখাস্ত খারিজ হওয়ার পর দরখাস্তকারীর প্রতিকার হলো অধিকতর অনুসন্ধানের দাবিতে ৪৩৬ ধারার অধীনে উচ্চতর আদালতে যাওয়া। ম্যাজিস্ট্রেট ফাংটাস অফিসিও হয়ে যাওয়ায় আগের কার্যক্রম পুনর্জীবিত করার কোনও ক্ষমতা তার নেই। হিউসুফ আ. হোসেন বনাম কেএম রেজাউল ফেরদৌস, ৪৮ ডিএলআর (১৯৯৬) (এডি) ৫৩। Sections 203 and 439A—Whether the Sessions Judge has got power under section 439A, Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 of the Code. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. Sections 203, 204(3) & 436—The order of dismissal of the complaint passed under sections 203 and 204 (3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary. The principle, that an order prejudicial to an accused should not be made, without giving him an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76. Sections 203, 205(1) & 436—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case. Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant respondent’s remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53. Sections 203 and 241A—A decision regarding framing of charge cannot be made without considering the inquiry report. Abul Kalam Azad vs State 52 DLR 583. Sections 203, 204 and 436—Since the Magistrate accepted the final reports and discharged the accused person as per provisions of law and since specific remedies have been provided in the Code against such discharge, the Magistrate has become functus officio and has no power to revive the proceeding. Rasharaj Sarker vs State 52 DLR 598. Sections 203, 205(1), 436 and 561A— Sessions Judge cannot direct the Magistrate to take cognizance of a case. The power of Sessions Judge is limited to directing a further enquiry into it. It will be for the Magistrate concerned to take or not to take cognizance after the further enquiry. A Rouf vs State 52 DLR 395. Sections 204(3), 435 and 436-Provisions under which Courts are competent to direct the Magistrate.—The Sessions Judge and, for that purpose, the District Magistrate, Chief Metropolitan Magistrate and the High Court Division, got power under section 435 CrPC to call for the record of any case pending before any Magistrate and direct the Magistrate under section 436 to make further enquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204 CrPC. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. Sections 204(3), 435 and 436-Provisions under which Courts are competent to direct the Magistrate. The Sessions Judge and, for that purpose, the District Magistrate, Chief Metropo- litan Magistrate and the High Court Division, got power under section 435 CrPC to call for the record of any case pending before any Magistrate and direct the Magistrate under section 436 to make further enquiry into any complaint which has been dismissed under section 203 or sub- section (3) of section 204 CrPC. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. Section 205 Section 205 CrPC was and is applicable only to cases in which summons has been issued although expressions in Chapter XVII are meant for cases in which summons is issued and warrant is issued. Hazi Hafeez vs Abdul Mabud 41 DLR 321. Section 205 Considering the hardship of the female accused in attending the Court at Nalchiti from Jessore the Magistrate may consider their prayer for appearing in Court through lawyer. Salam Mollick vs State 48 DLR 329. Section 205C-Under the newly added pro- visions of section 205C jurisdiction has been vested in the Magistrate to examine the police report or other materials on record and if it appears to the Magistrate that the offence as dis- closed from such materials is triable exclusively by the court of Sessions he is empowered to send the case to such court. Maksudur Rahman Hilaly vs State 47 DLR 314. Section 205C-From a reading of this section, it is found that there is any dead-end time limit for producing those documents in Court. Nurul Islam Manzoor vs State 52 DLR 276. Section 205—Section 205 CrPC was and is applicable only to cases in which summons has been issued although expressions in Chapter XVII are meant for cases in which summons is issued and warrant is issued. Hazi Hafeez vs Abdul Mabud 41 DLR 321. Section 205-Considering the hardship of the female accused in attending the Court at Naichiti from Jessore the Magistrate may consider their prayer for appearing in Court through lawyer. Salam Mollick vs State 48 DLR 329. Sections 205 and 540A-The language in sections 205/540A of the Code gives no special meaning to the word "representation" or "pleader". This is to suggest that a new advocate is not at all necessary to be appointed in favour of the accused, in consideration of the application at hand. Her current team of representatives (Advocates) can easily suffice for the role suggest in these sections. As such the Court has evidently not failed in their duties to allow such an opportunity to the accused. Begum Khaleda Zia vs Anti-Corruption Commission, 70 DLR 755 Section 205C—Under the newly added provisions of section 205C jurisdiction has been vested in the Magistrate to examine the police report or other materials on record and if it appears to the Magistrate that the offence as disclosed from such materials is triable exclusively by the court of Sessions he is empowered to send the case to such court. Maksudur Rahman Hilaly vs State 47 DLR 314. Section 205C—From a reading of thisj section, it is found that there is any dead-end time limit for producing those documents in Court. Nurul Islam Manzoor vs State 52 DLR 276. The procedure to be followed in this case is that the Druta Bichar Tribunal No. 2 shall hold simultaneous trial of the accused persons in the complaint 1 case and shall dispose of the cases in accordance with sub-section (3) of section 205D which is equally applicable to it. It shall conclude the trial of the police case first and postpone the delivery of the judgment till the trial of the complaint case is concluded and then it will decide which accused persons are involved in the killing of the - victim and shall deliver judgment accordingly. If the court finds one set of accused persons or any one of them is involved in the killing it shall acquit the accused persons in the other case. The judgment of the learned Sessions Judge and the High Court Division are set-aside. We direct the Chief Metropolitan Magistrate to transmit the case record to the Druta Bichar Tribunal No.2 Dhaka for simultaneous trial of the case with Druta Bichar Tribunal Case No.2 of 2010. The Druta Bichar Tribunal shall use the post-mortem report and other alamats seized in the police case in this case also. [73 DLR (AD) 207] Section 205C(a)-It is a mandatory provision that the accused must be 'sent' for trial by the Magistrate. The taking cognizance of the offence by a Session Judge is not so material. The material fact is that the Magistrate empowered to take cognizance must 'send' the case to the Court of Session under section 205C(a) of the Code after taking cognizance and performing formalities, and then only the question of taking cognizance of offence by the Court of Session comes into play. The question of taking cognizance does not arise in this case for the second time. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 205C-Police have already submitted charge-sheet against the accused and therefore, no further investigation is necessary into the allegations made in the FIR. We direct the Commission to transmit the record if the record has not been transmitted in the meantime along with the police report to the court of Chief Metropolitan Magistrate for passing necessary orders in accordance with law. The learned Magistrate shall examine the record of the case and if he finds that a prima facie offence is disclosed, he shall proceed with the case in accordance with section 205C of the Code. Yunus (Md) vs State, 68 DLR (AD) 109 Section 205D-Section 205D of the Code clearly direct the learned Magistrate to stay the proceeding if at the time of filing a CR case the investigation of a GR case is in progress over the same matter. Monir Hossain vs State, 65 DLR 413 Section 205D(1)(2)(3)-When there is a complaint case and a police case over the selfsame occurrence against some persons as accused, the proceeding of the complaint case would be stayed giving way to the police to conclude the investigation of the case and if the police report does not relate to all accused persons in the complaint, the Magistrate shall hold an inquiry into the complaint and upon such inquiry, he shall proceed with the trial of both the cases analogously as if the complaint was made with police or send the case to the Court of Sessions if the offences are triable by the Courts. In such a case, both the cases are deemed to be instituted on a police report. But according to sub-section (3) if the police report does not relate to any accused in a complaint case, the Magistrate shall proceed with the inquiry and trial which was stayed by him in accordance with the provisions of the Code. Enayet Chowdhury (Md) vs State, 70 DLR (AD) 22 Sections 205D(1)(2) and 439-Memo of appeal may be treated as a revision and the Sessions Judge or any other Court shall dispose of the revision in accordance with law. Enayet Chowdhury (Md) vs State, 70 DLR (AD) 22 S. 205D-Section 205D of the Code clearly direct the learned Magistrate to stay the proceeding if at the time of filling a CR case the investigation of a GR case is in progress over the same matter. Monir Hossain Vs. State, 65 DLR (2013)-HCD-413. Section 205D- Under section 205D Cr.P.C. both the cases, one instituted on police report and the other on complaint on the self-same occurrence, shall be tried by the Magistrate in the same trial treating both the cases as if instituted on a police report...... Enayet Chowdhury (Md.) =VS= The State, [3 LM (AD) 554] Section 205D(3)-The Druta Bichar Tribunal shall hold simultaneous trial of the accused persons in the complaint case and shall dispose of the cases in accordance with sub-section (3) of section 205D which is equally applicable to it. It shall conclude the trial of the police case first and postpone the delivery of the judgment till the trial of the complaint case is concluded and then it will decide which accused persons are involved in the killing of the victim and shall deliver judgment accordingly. If the court finds one set of accused persons or any one of them is involved in the killing it shall acquit the accused persons in the other case. The judgment of the Sessions Judge and the High Court Division are set-aside. We direct the Chief Metropolitan Magistrate to transmit the case record to the Druta Bichar Tribunal for simultaneous trial of the ease with Druta Bichar Tribunal Case, The Druta Bichar Tribunal shall use the post-mortem report and other alamats seized in the police case in this case also. Siddiqur Rahman (Md) vs SM Maola Reza (Criminal), 73 DLR (AD) 205 Section 221—Charge—Charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. Abdur Razzaque @ Geda vs State 48 DLR 457. Sections 221 & 222—The failure of the trial Court in not mentioning the particulars which are required to be mentioned under sections 221 and 222 of the Code while framing charge deprived the accused proper defence and, as such, the error has occasioned failure of justice. Bashir Kha vs State 50 DLR 199. Sections 221 & 232—Charge——charge under section 201 Penal Code was framed against the appellants and although no charge under sections 302/34 Penal Code was framed they were convicted thereunder. Conviction without such a charge being framed is illegal. Muslim vs State 47 DLR 185. Sections 221 & 537—A charge is an important step in a criminal proceeding and the accused is answerable to the charges levelled against him. The object of framing charge is to ensure that the accused may have as full particulars as are possible of the accusation brought against him. Defect in framing charge is not curable under section 537 of the CrPC. Moslem All Mollah alias Moslem Molla vs State 48 DLR 427. Ss. 221, 223-The object of framing charge in a criminal trial is to be enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet or in the alternative, to warn the accused of the case he is to answer. It shall contain the nature and the particulars of the offence by name, the date, time and place. The accused is entitled to know with accuracy and certainty the exact nature of the charge brought against him so that he can take proper defence. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-120 S. 221, 222, 223 and 537-Though section 537 provides that by reason of error o omission in the charge the conviction shall not be reversed and altered, this being a general provisions, this section does not supersede the provisions relating to the contents of a charge contained in sections 221, 222 and 223 of the Code o Criminal Procedure, inasmuch as, section 537 states "subject to the provision hereinbefore contained" (sic) that is to say, the aforesaid sections will prevail over section S.37. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-120 Sections 221 and 222-Alternation of charge from 11(Ka) of the Ain to section 302 of the Penal Code will not cause prejudice to the accused. State vs Nurul Amin Baitha (Criminal) 75 DLR (AD) 187 Sections 221 and 222-Object of framing of charge-The object of framing a charge to enable an accused person to known the substantive charge which he will have to meet at the trial. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Section 222-Merely because charge has been framed against the accused, the case is not proved against him and it is the prosecution which has to prove its case beyond reasonable doubt, and the accused shall have all the right to take his defence by cross-examining the prosecution witnesses and also by examining his own witnesses, if he so desires. Ahmed Lal Mia vs State, 66 DLR (AD) 204 Section 221-Charge Charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. Abdur Razzaque @ Geda vs State 48 DLR 457. Sections 221 & 222-The failure of the trial Court in not mentioning the particulars which are required to be mentioned under sections 221 and 222 of the Code while framing charge deprived the accused proper defence and, as such, the error has occasioned failure of justice. Bashir Kha vs State 50 DLR 199. Sections 221 & 232-Charge-charge under section 201 Penal Code was framed against the appellants and although no charge under sections 302/34 Penal Code was framed they were convicted thereunder. Conviction without such a charge being framed is illegal. Muslim vs State 47 DLR 185. Sections 221 & 537-A charge is an important step in a criminal proceeding and the accused is answerable to the charges levelled against him. The object of framing charge is to ensure that the accused may have as full parti- culars as are possible of the accusation brought against him. Defect in framing charge is not curable under section 537 of the CrPC. Moslem Ali Mollah alias Moslem Molla vs State 48 DLR 427. Section 222(2)-The entire proceedings against the accused appellants are vitiated for defect of charge due to non-compliance of section 222(2) proviso of the Code of Criminal Procedure. Abul Khair vs State 58 DLR 500. Sections 222(2), 234(1) & 537-Charges framed in violation of the mandatory provision of section 234(1) read with section 222 (2) of the CrPC is an illegality not curable under section 537 of the Code and, as such, the impugned conviction and sentence are set aside. Abul Kalam Azad vs State 48 DLR 294. Sections 222, 234 and 537-Violation of the provisions of sub-section (2) of section 222 of the Code in respect of framing of charge against an accused is not curable by section 537 of the Code and, as such, the trials of those cases stood vitiated. But admittedly the provisions of sub- section (IB) of section 6 of the Act were not brought to the notice of the Courts nor those were agitated by any party before the Courts. So necessarily there was no finding in place with regard to the primacy of the provisions of sub-section (1B) of section 6 of the Criminal Law Amendment Act Act over those of section 222 and section 234 of the general law in those decisions. ATM Nazimullah Chowdhury vs State, 65 DLR 500 Section 222(2)- The provisions of the special law will prevail over those of the general law. A person accused of more offences than one may be tried at one trial for all such offences. The limitation of one year as contained in the proviso to sub- section (2) of Section 222 is not applicable for trial of a person accused of more offences than one under the Act. ATM Nazimullah Chowdhury vs State, 65 DLR 500 Sections 222(2) and 234(1)-Any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. All the offences committed over any length of period of time could be tried in one trial upon framing one charge. State vs Md Ibrahim Ali, 66 DLR (AD) 33 Section 222 and 234- So necessarily there was no finding in place with regard to the primacy of the provisions of sub-section (1B) of section 6 of the Criminal Law Amendment Act Act over those of section 222 and section 234 of the general law in those decisions. ATM Nazimullah Chowdhury vs State, 65 DLR 500 Sections 222(2) and 234(1)- Any number of offences punishable under the Criminal Law Amendment Act irrespective of the period over which the offence was committed, may be tried at one trial. All the offences committed over any length of period of time could be tried in one trial upon framing one charge. State vs Md Ibrahim Ali, 66 DLR (AD) 33 Section 222(2)—The entire proceedings against the accused appellants are vitiated for defect of charge due to non-compliance of section 222(2) proviso of the Code of Criminal Procedure. Abul Khair vs State 58 DLR 500. Sections 225 & 535—Defect in charge curable—When the FIR and the evidence have given the exact time of the occurrence, a misstatement in the charge as to the time of the occurrence cannot mislead the accused in his defence and the trial cannot be said to have been vitiated in view of the provision under sections 225 & 535 CrPC. Abdul Hashem Master vs State 44 DLR 159. Section 227—Where there is no non-obstante clause the jurisdiction of the court, constituted under the Code of Criminal Procedure cannot be taken away or barred—the court below committed no illegality in taking cognizance or framing of charge under the general provision of law. Moniruzzaman vs ANM Didar-e-Alam 54 DLR 445. Section 227—The Court under section 227 of the Code of Criminal Procedure is competent to alter or amend the charge at any stage of the proceeding before pronouncement of judgment. Nasim (Md) vs State 57 DLR 546. Sections 227, 241A & 242—The case having been sent to the Special Judge after taking of cognizance by the Senior Special Judge there is no illegality in the adding of a fresh charge by the former. HM Ershad vs State 45 DLR 534. Section 227(1)—The Court is competent to add or alter charge if situation arises and the materials placed before it reveals justification. HM Ershad vs State 45 DLR 533. Sections 227, 228, 231, 232 and 537- Defect in framing of charge cannot be a ground for acquittal of the accused. The only time when any proceeding can be quashed for material error in the framing of charge is when the Court forms the opinion that the facts of the case are such that no valid charge could be framed against the accused in respect of the facts proved. Section 232 of the Code of Criminal Procedure provides that even where an accused convicted of an offence was misled in his defence by absence of a charge or by an error in the charge, the Appellate Court or the Revisional Court shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. Thus, if ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgement, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence.... The State -VS- Ibrahim Ali(Md.), [10 LM (AD) 385] Section 227-Charge may be altered at any time even before pronouncement of the judgment. For proper adjudication the trial court should, in consideration of the entries contained in the cheque namely the designation of the petitioner as the Managing Director of the Company, alter the charge. Shariful Haque (Md) vs State represented by the Deputy Commissioner, 70 DLR 209 Sections 227(1)(2)-If ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronounce- ment of judgment, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence. State vs Md Ibrahim Ali, 66 DLR (AD) 33 Section 227-The appellate Court has wide power to alter and amend the charges which may have been erroneously framed earlier. State vs Nurul Amin Baitha (Criminal) 75 DLR (AD) 187 Section 231- As per provision of section 231 of the Code of Criminal Procedure if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case but in this case, the charge has been altered and two of the accused persons were made approvers and they are examined as PWs. In such circumstances, it was reasonable to allow the accused petitioner to re-examine the witnesses. This petition is disposed of. The prayer of the petitioner so far the same relates to recalling the PWs 1 to 5 and 8 are allowed. The prayer in respect of direction to Public Prosecutor to issue certificate regarding the evidence of approvers is rejected. Gias Uddin al-Mamun (Md) =VS=State, [5 LM (AD) 244] Section 231-The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case. Gias Uddin-al-Mamun (Md) vs State, 70 DLR (AD) 123 Sections 231 and 540-As per provision of section 231 of the Code if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. Gias Uddin al-Mamun (Mil) vs State, 70 DLR (AD) 123 Section 232—The accused has been prejudiced by absenée of charge or framing of the charge at a belated stage. Section 232 CrPC contemplates a new trial or remanding of the case to the trial Court in such a situation. It is too late now to direct a retrial after a long lapse of time. Abdur Razzaque @ Geda vs State 48 DLR 457. Section 232 The accused has been preju- diced by absence of charge or framing of the charge at a belated stage. Section 232 CrPC contemplates a new trial or remanding of the case to the trial Court in such a situation. It is too late now to direct a retrial after a long lapse of time. Abdur Razzaque @ Geda vs State 48 DLR 457. Section 233—দুটি খুনের জন্য আসামীদের বিরুদ্ধে একটি চার্জ গঠন করা হয়েছে । ইহা আইনসংগত হয় নাই । দুটি হত্যার জন্য পৃথক পৃথক ভাবে চার্জ গঠন করতে হবে । Abdul Aziz vs Sekendar Ali 111. Section 233—The element of continuity of action was also present in the instant case in that the petitioner and others encircled the house of the victims and that thereafter petitioner and some others entered into the hut of the victims and caused injuries by sharp cutting weapons in consequence whereof the death occurred. In this state of the matter it can in no way be said that the offences or, in other words, causing death of the two persons by the petitioner and others was not committed or done in the course of the “same transaction” or in one transaction. Delower Hossain Khan vs State 54 DLR (AD) 101. Section 233—The object of this section is to save the accused from being embarrassed in his defence if distinct offences are tried together in one case. The legislature has engrafted certain exceptions to the provision contained in section 234, 235, 236 and 239. Zahed Hossain vs State 60 DLR 386. Section 234—The period of one year is available in section 234 of the Code of Criminal Procedure but it is absent in section 6(1B) of the Criminal Law Amendment Act and thereby in view of the provision laid down in section 6(1) of the Criminal Law Amendment Act, 1958 section 6(1 B) excludes the application of section 234 which relates to the period of the commission of the alleged offence. Habibur Rahman Molla vs State 61 DLR 1. Section 234—Mis-joinder of charges—One charge both under sections 460 and 302/34 Penal Code framed against all the accused is defective and conviction thereunder is set aside. Abdul Quddus vs State 44 DLR 441. Sections 234 and 236—Applicability of sections 234 & 236 Manner of—Section 234 and section 236 apply to cases where one person may be dealt with at one trial for more than one offence while section 239 applies to the trial of more persons than one jointly. Where two incidents are independent and wholly unconnected with each other, no joint trial is permitted. Lal Mia vs State 40 DLR 377. Sections 234-236—Mis-joinder of charge— When the accused have been charged under sections 302/34 Penal Code on the allegation that they committed murder in furtherance of common intention, the addition of section 460 Penal Code in the charge is materially defective. The accused having been convicted and sentenced under sections 302/34 their, conviction and sentence at the same time under section 460 in the same case is bad in law and should be set aside. Khelu Mia vs State 43 DLR 573. Sections 234 and 561A—The contention that there cannot be three separate cases out of single transaction and the petitioners cannot be put on trial in three separate cases arising out of one transaction is of no substance. Abul Fazal (Md) alias Abul Fazal alias Badal vs State 53 DLR (AD) 100. Section 234- While quashing the criminal proceeding this court observed that the period of occurrence in respect of the incident is hit by section 234 of the Code. This observation is made through overlooking sub-section (IB) of section 6 of the Act, 1958. The observation is expunged. Manzur Ahmed vs Government of the People's Republic of Bangladesh, 70 DLR (AD) 155 Sections 234 and 239, 535 and 423(b) (2)- An accused person can be convicted of a particular offence only if he was charged with the same. The ordinary rule that the accused cannot be convicted of any offence with which he is not charged is circumscribed by exceptions. The power of the appellate court under section 423(b)(2) is, however, subject to the condition that the appellate court cannot enhance the sentence imposed by the trial court. (SK SINHA, JAGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Sections 235 and 239-Whether a series of acts are so connected together as to form the part of the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formula of universal appli- cation cannot be framed regarding the question whether two or more acts constitute the same transaction. The circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. A transaction may be continuous one extending over a long period and two places. The expression "part of the same transaction" must be understood as including both immediate cause and effect of an act or even also its collocation or relevant circumstances. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 235—The various acts were done in pursuance of a particular end in view and they were connected together by proximity of time, unity of purpose and continuity of action and those acts formed parts of the same transaction within the meaning of section 235, CrPC. (Per Siddiqur Rahman Miah J: agreeing). Zahed Hossain vs State 61 DLR 386. Sections 235 and 239—The provisions of section 235 and 239 of the Code vest a discretion with the Court to try offences of the kinds indicated therein jointly in the circumstances mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. (Per Siddiqur Rahman Miah I agreeing). Zahed Hossain (Md) vs State 61 DLR 386. Sections 235-237—Where from the facts of the case it is not clear which of the several offences has been committed, the accused may be charged with having committed all or any of such offences and he may be convicted of the offence which he is shown to have committed, although he was not charged with it. Parveen vs State 51 DLR 473 Sections 235-237 and 403—When facts of the case are such that it is doubtful which of the several offences has been committed the accused may be charged with having committed all or any of such offences; and after trial for one such offence the accused may be convicted for the other offence even though he was not charged thereof—In the instant case “robbery” and “unauthorised possession of fire arms” are not offences of the same nature contemplated in sections 236 and 237 (1) CrPC, but these are two distinct offences for which a person may be charged for each of them as provided in section 235(1) CrPC. Arfan Ali vs State 42 DLR (AD) 22. Sections 235 and 239—Section 235 empowers trial of a person for more offences than one if those are committed in the same transaction but section 239 provides for persons accused of different offences committed in the course of the same transaction. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287. Sections 235 and 239—Whether a series of acts are so connected as to form the same transaction is purely a question of fact depending on proximity of time and place, continuity of action and unity of purpose and design. A comprehensive formuia of universal application cannot be framed regarding the question whether two or more acts constitute the same transaction. State vs Md Abu Taher 56 DLR 556. Sections 236, 237, 238 & 337—The accused raised no objection on the score of defect in charge at any stage of the trial. The objection raised for the first time in the Appellate Division is not entertainable by virtue of explanation appended to section 537 of the Code of Criminal Procedure. Rajib Kamrul Hasan vs State 53 DLR (AD) 50. Section 236 & 237—An offence under a particular section if not proved but some other offence is made out by the prosecution, the accused persons can be very well convicted and sentenced for the other offences proved before the court through legal evidence. Al-Amin vs State 51 DLR 154. Sections 236 & 237—When an accused is charged under sections 302 and 134 Penal Code his conviction under section 201 Penal Code is legal. Kalu vs State 45 DLR (AD) 161. Sections 236, 237, 238, 417 and 423—A fmding of acquittal can be converted into one of conviction only in an appeal under section 417 which being in accord with section 423 CrPC is the correct view taken in Bawa Singh’s case. Mofizuddin vs State 40 DLR (AD) 286. Joint trial of different offences under different enactments does not vitiate proceedings in the absence of prejudice to the accused, particularly when the special enactment authorizes the Court to try different offences jointly where a charge is framed for one offence but offence committed is found to be some other than the one charged, provided, the same facts can sustain a charge for the latter offence, the accused can be convicted for such an offence. Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal. 18 SCOB (2023) AD 1 Sections 237 and 238-Even where a charge was framed against an accused person in respect of an offence, he may be convicted for lesser offence provided the case attracts section 237 and 238 of the Code. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Section 237—In view of the provisions of section 237 of the Code of Criminal Procedure the conviction of the petitioner under section 381 is maintainable although he was charged under section 408 but not under section 381 of Penal Code. In view of the provisions of section 237 CrPC and being in respectful agreement with the pronouncements of the learned Judges, I am of the view that although in this case the petitioner was charged under section 408 of the Penal Code and not under section 381 of the Penal Code still his conviction under section 381 of the Penal Code is quite maintainable as the petitioner was fully aware of the nature of accusation against him and had the opportunity to meet the elements of offence punishable under section 381 of the Penal Code and he was not also prejudiced by conviction under section 381 of the Penal Code. Mahbubul Alam vs State 41 DLR 7. Section 237—Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged in respect of a single act or series of acts, then, subject to absence of prejudice, the accused may be convicted of the offence, which he is shown to have committed although he was not charged with it. Parveen vs State 51 DLR 473. Section 237—The trial Court committed gross mistake in passing sentence under different penal provisions with which the convicted accused persons were not even charged with. Alam vs State 54 DLR 298. Section 237—Law is well settled that if an offence under a section is proved though not charged the accused can be convicted for the offence proved on the strength of the provision of section 237 of The Code. State vs Ershad Au Sikder 56 DLR 305. Sections 237 and 238—Appellate Court can alter the conviction for other offence for which no charge was made. Jahangir Hossain vs State 40 DLR 545. Section 238—An offence to be a minor offence to a major one must be a cognate offence to the major one, having the main ingredients in common. State vs Sree Ranjit Kumar Pramanik 45 DLR 660. Section 238—An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence. Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman vs State 51 DLR (AD) 33. Section 238(2)—It is true that no charge was framed against the accused under section 25B(2) but in view of the provisions of section 29 of the Special Powers Act and sub-section (2) of section 238 of the Code of Criminal Procedure, he may be convicted under sub-section (2) of section 25B of the Special Powers Act, 1974. Shamsul Haque vs State 49 DLR 528. Section 239—Mis-joinder of charges— Validity of trial—In a case where it is found that the trial is vitiated by misjoinder, then in the eye of law there has been no valid trial and therefore an accused cannot be acquitted after setting aside conviction. State vs Constable Lal Mia 44 DLR (AD) 277. Section 239—Joinder of charges—Sameness of transaction—Circumstances which must bear on the determination whether certain acts or events constitute a single transaction in each individual case are proximity of time, proximity of place, continuity of action and community of purpose or design. Which factor or factors shall be given relative importance depends on the facts of each case. State vs Constable Lal Mia 44 DLR (A D) 277. Sections 239 & 537—Sameness of transaction—Defect—If there is good evidence that the transaction was one and the same, then mere absence of certain links in the accusation will not make the trial illegal. If at all it is a defect which is curable under section 537 CrPC. State vs Constable Lal Mia 44 DLR (AD) 277. Section 241, 241A—Forgery—fabrication of bank record taking recourse to forgery and using the same as genuine by deceitful means for taking pecuniary advantage for themselves and for others—Prima facie case made out against the accused—Order of discharge of the accused (Shafiqul Islam) shows total non-application of judicial mind of the Special Judge to the materials on record. Provision of section 241A is to be strictly followed. An order of discharge can be made only when no case is made out against the accused. State vs Shafiqul Islam 40 DLR 310. S. 241-Discharge of accused. Facts stated in the application under Section 241A of the Code of Criminal Procedure praying for discharge are nothing but defence pleas and these cannot be considered at the time of framing of charges. In such view of the matter, the learned Sessions Judge committed no illegality in summarily rejecting the accused-petitioner's revisional application U/S 439A of the Code. The High Court Division was also perfectly justified in summarily rejecting the petitioner's application u/s 561A of the Code of Criminal Procedure. Syed Abu Siddique Vs. The State, 2 ALR (2013)-AD-62. S. 241A and 439A-Facts stated in the application under Section 241A of the Code of Criminal Procedure praying for discharge are nothing but defence plea and these cannot be considered at the time of framing of charges. The learned Sessions Judge committed no illegality in summarily rejecting the accused petitioners revisional application under section 439A of the Code. Syed Abu Siddique Vs. The State, 2 LNJ (2013)-HCD-37. Revival of Criminal Case Revival of a case against a discharged accused With the discharge of an accused the proceeding against him comes to an end and the Magistrate has no power to revive the said proceeding against him in the absence of at fresh complaint or a fresh police report in respect of the same offence. A second prosecu- tion is competent under special circumstances. Cr.PC. S.241A Maulana M.A. Mannan and others Vs. The State, 15BLD (HCD) 151 Section 241A—Magistrate cannot discharge accused persons on the plea of alibi that they were at different places at the time of commission of offences alleged by the prosecution—Magistrate’s “finding” in this regard is based on no evidence. Mere submission of some papers supporting alibi is neither sufficient nor admissible as the stage of adducing defence evidence was not yet come. Magistrate’s order of discharge was not sustainable as it was based on gross misconception of law. Nannu Gazi vs Awlad Hossain 43 DLR (AD) 63. Section 241A—This provision casts a duty on the Judge to discharge the accused when there is no ground for proceeding with the case and his order must record reasons therefor. HM Ershad vs State 45 DLR 533. Section 241A—Trial Court has a wide power regarding framing of charge. This cannot be interfered with lightly either by the revisional court or the appellate Court. Forhad Hossain vs State 50 DLR 337. Section 241A—At the stage of framing the charge the Magistrate is to consider documents of the prosecution and not those of the defence which could form part of the record after the charge is framed. Additional Sessions Judge on consideration of some documents produced by the accused opposite party before him came to the conclusion that the charge was groundless. Accused opposite party could not produce such document before the trial begins and the learned Additional Sessions Judge was not justified in considering those documents to pass the impugned order. Additional Sessions Judge acted illegally in passing the impugned order relying upon the documents filed by the accused-opposite party for the first time before him. Mahbuba Akter vs Mozemmel Hoque 47 DLR 404. Section 241A—The time of producing defence alibi is during the trial and after the prosecution has adduced its own evidence and they must be given a chance to prove their case. Jalaluddin Bhuiyan vs Abdur Rouf 51 DLR 408. Sections 241A & 164—To frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial Court is not obliged to consider the statements of any witness recorded under section 164 CrPC. Forhad Hossain vs State 50 DLR 337. Sections 241A and 242—Court is to record the reasons for discharging the accused under section 241A of the Code, but no such reasons are required to be recorded in farming charge against the accused as per provisions of section 242 of the Code. The Special Judge framed charge against the accused-petitioner after hearing both the parties and being satisfied that there was ground for framing of charge. No illegality in framing of charge against the accused-petitioner and there is no ground of setting aside the impugned order. Amanullah vs State 62 DLR 382. Sections 241A, 265B & 265C—The Sessions Judge is directed to allow the Advocates of the accused to go through the papers and documents upon which the prosecution will rely for framing charges in the case. Hossain Mohammad Ershad [former President Lieutenant General (Rtd)] vs State 48 DLR 95. Sections 241A & 439A—The accused-petitioner, if he would have felt aggrieved, against the order passed by the Magistrate framing charge against him, could have invoked the jurisdiction of the Sessions Judge under section 439A for the relief. The inherent jurisdiction of the High Court Division has been wrongly invoked. Rustom All Matubbar alias Alam vs Mohammad Salahuddin 50 DLR 301. Sections 241A & 265C—অভিযোগ গঠন বিষয়ে শুনানীর সময় আসামীর দাখীলী প্রমাণ তথা দলিল পত্র বিবেচনা করা যায় না এবং তার ভিত্তিতে আসামীর বিরদ্ধে মামলা বাতিল করা যায় না । Nazrul Islam vs State 50 DLR 103. Sections 241A, 265C & 561A—An accused can only prefer an application under section 561A for quashing the proceeding if he becomes previously unsuccessful in his application either under section 265C or 241A, otherwise his application for quashing shall be premature. Section 265C speaks of discharge of an accused in a trial before Court of Sessions. Section 241A speaks of discharge in a trial by a magistrate. These sections indicate that when an accused is brought for trial before a Court of law the Court upon hearing the parties and on consideration of the record of the case and the documents may discharge the accused. These sections have nothing to do with quashing of a proceeding. Section 561A is an independent inherent power of the High Court Division of the Supreme Court and this power can be exercised in case of abuse of process of Court and for securing the ends of justice and or to give effect to any order under the Code ref. Latifa Akhter vs State 51 DLR (AD) 159. Section 241A, 439, 439A and 561A—Even a party unsuccessful in a revision before the Sessions Judge may invoke the jurisdiction of this Court under section 561A of the Code of Criminal Procedure. Matiur Rahman vs Nuru Sikdar 56 DLR 246. Sections 241A & 242—The trying Magistrate is required to exercise his own independent judgment and to see whether there is a prima facie case to proceed with the trial. The report of the judicial Magistrate cannot be binding on the trying Magistrate. Abul Ahsan Joardar vs Kazi Misbahul Alam 45 DLR 606. Sections 241A & 242—The trial Court has a wide power to frame charges and this cannot be interfered with by the Revisional Court by way of giving direction for altering a charge or framing a charge. Sharful Islam vs Billal Hossain and the State 45 DLR 722. Sections 241A & 242—The Court has jurisdiction to pass an order of discharge if it was satisfied that the charge was groundless for which it was to give reasons but if it framed charge it was not required of the Court to record reasons. HM Ershad vs State 45 DLR 533. Section 241A-The plea are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. Maulana Abdul Malek Miah vs State, 467 Section 241A-Question of 'mens rea of an accused cannot be gone into a criminal revision. It is essentially a matter of evidence and trial. Mohua Ali vs State, 70 DLR 816 Sections 241A and 242-Whether the accused petitioner have done their duties with due care and caution the same will be considered at the time of trial after taking evidence in the case but not at the stage of charge hearing. Delwara Begum vs Dr. Md Surman Ali, 70 DLR 766 Sections 241A, 242 and 342-The accused was present at the time of framing of charge and recording statement of the witnesses. Even she submitted her written statement at the time of examining her under section 342 of the Code. Begum Khaleda Zia vs Anti-Corruption Commis- sion. 70 DLR 755 Sections 241A/265C-Defence ver sion should not be taken into consi-deration by the trial Court at the stage of framing charge. Aleya vs State, 70 DLR 303 Sections 242/265D(1)-Trial Court has to form "an opinion that there is ground for presuming that the accused has committed offence......" An opinion on the basis of presumption and a finding in a judicial proceeding are two distinct concepts. A finding about commission of offence must be based on evidence. Abdur Razzak vs State, 64 DLR 192 Section 242—Consideration of the statements made under section 161 CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. HM Ershadvs State 45 DLR 533. Section 242—Consideration of the statements made under section 161 CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. Saber Ahmed vs Manzur Mia 35 DLR 213 & State vs Md Safikul Islam 40 DLR 310 relied. NM Ershad vs State 45 DLR 533. Sections 243 and 537—Violation of the mandatory requirements of section 243 in recording the individual statements of the accuseds either in their language or in words as nearly as expressed by them is not curable by Section 537. Conviction and sentence are not sustainable in law accordingly. Ali Newaj Bhuiyan vs State 40 DLR 398. Sections 243 & 537—The alleged admission of guilt was not recorded as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the violation of which causes prejudice to the accused and is not curable under section 537 CrPC. The order of conviction and sentence as against the appellant on the basis of such so-called admission of guilt cannot therefore be sustained in law and the same should therefore be set aside in the interest ofjustice and the case should be sent back on remand to the trial Court to hold that trial afresh from the stage of framing the accusation or charge again after hearing the parties and considering the materials on record in accordance with the law in the light of the observations made above. Saheb Ali Miah vs State 46 DLR 238. Section 245(1)—The prosecution having not taken any steps the learned Magistrate rightly acquitted the respondents under section 245(1) of the Code of Criminal Procedure. Mobarak Ali vs Mobaswir Ali 49 DLR (AD) 36. Section 247—The Magistrate had no reason to adjourn hearing of the case as neither the complainant or his advocate appeared and took any steps whatsoever. The Magistrate was therefore bound to acquit the respondent. Ayub Ali Bangali vs Mia Manir Ahmed 46 DLR 330. Section 247—Summons must be issued for securing the attendance of the accused on the day appointed for hearing of the case. Shajib vs Md Abdul Khaleque Akand 51 DLR (AD) 119. Section 247—Interpretation of Statute— Words “Summons” and “Warrant”—Meaning of —Whether they convey different meanings though they are different modes of process to compel appearance—Whether there is scope to interpret the “summons” to include “warrant”— Court cannot put a word in legislation which is not there. Hazi Hafez vs Abdul Mobud 41 DLR 321. Section 247—Section 247 CrPC shall apply to a case in which summons has been issued on complaint and shall not apply to a case in which warrant has been issued though on complaint. Hazi Hafez vs Abdul Mabud 41 DLR 321. Section 247, Proviso—Complainant petitioner a Deputy Attorney-General of Bangladesh Government, busy with official matters could not present himself in the Court of Magistrate and pray for adjournment. His witnesses were examined and cross-examined but no adjournment was given though the petitioner was entitled to such privilege. His petition was not rejected but simply stated therein “Not admitted”; Held—The Magistrate’s order is not sustainable in law. Sultan Ahmed vs Golam Mostofa 41 DLR 219. Section 247—Appraisal of evidence—Complainant petitioner’s evidence was discredited because, in the opinion of the Magistrate, he had not filed any GD entry about the incident alleged by him. Held—This is not necessary at all in law. Sultan Ahmed vs Golam Mostofa 41 DLR 219. Section 247—Learned Magistrate did not base his finding on proper appreciation of evidence on record and was rather biased against the petitioner for reasons not known. Sultan Ahmed vs Golam Mostafa 41 DLR 219. Section 247—Applicability of section 247 CrPC—Case to be originated from a petition of complaint and summons to be issued following the complaint—But warrant was issued in the present complaint case and the necessary condition such as issuance of summons for the application of the section is absent—After amendment there is no distinction between summons case and warrant case at the trial stage. Hazi Hafez Md Shamsul Islam vs Abdul Mabud 41 DLR 321. Section 247—Acquittal—Accused present but complainant absent in Court—complainant filed an application for adjournment through his advocate—No order was passed by the Magistrate on the adjournment application—He acquitted the accused of all charges—The order of acquittal was not in keeping with law. Md Musa Khan vs Farookh Hossain 42 DLR 257. Section 247—A complaint case ought not to be dismissed for non-appearance of the complainant on an adjourned date unless his attendance in the court is specially required on that date or unless the Court is convinced that the complainant is not keen about prosecuting his case. A Jabber Howlader vs Ali Akbar Howlader and State 52 DLR 329. Section 247—It is necessary for the Magistrate before dismissing the complaint to see whether the complainant had been dilatory in the prosecution of the case or not. GM Morshed vs City Bank Ltd 56 DLR 205. Section 247—Power to dismiss the case is undoubtedly there when the complainant is found absent but that power must be exercised judicially and it must be seen and considered having regard to the circumstances of a given case. Tofael Ahmed vs Chand Mia, State 56 DLR 614. Section 247—When evidence was closed, statement under section 342 CrPC was recorded after due examination of the accused and the case reached the stage of argument, acquittal of the accused under section 247 CrPC was not proper judicial exercise of the power. Tofael Ahmed vs Chand Mia, State 56 DLR 614. Sections 247 and 403—Acquittal under section 247 CrPC will bar fresh complaint or trial under section 403 CrPC. Tofael Ahmed vs Chand Mia, State 56 DLR 614. Sections 247 & 403—Acquittal of the accused under section 247 CrPC is not an acquittal within the meaning of section 403 of the Code and cannot bar a fresh prosecution. Gadahar Namadas vs Joytun Akhtar 47 DLR 313. Section 247(2)—It was for the Magistrate to ascertain before dismissing the petition of complaint whether the complainant was notified properly or whether she took delay dalling tactics in order to harass the accused inspite of receipt of notice issued by the court. Nabiran Bibi vs Md Panna Miah 52 DLR 394. Section 247 r/w section 403- Since the order passed under section 247 of the Code of Criminal Procedure is one of acquittal the second complaint on the same allegation is not maintainable. At whatever stage of the proceeding the acquittal order section 247 is ordered, such order will operate as a bar the fresh trial, in the same way as are acquittal after trial on merits. The judgment and order of the High Court Division is set aside. The proceeding of C.R. Case No.421 of 2006 is hereby quashed. Bo-Sun Park =VS= The State, [3 LM (AD) 544] S. 247-The same Magistrate passing an order of acquittal cannot set aside his own order; There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the CrPC. Though the trial was not held, the order of acquittal was recorded under section 247 of the CrPC Though the trial was not held, the order of acquittal was recorded under a specific provision of law which is either appealable or revisional before the higher court. Unless and until the order of acquittal under section 247 of the CrPC is revised or set aside by the higher court, the same Magistrate cannot set over the matter and set aside his own order and re-start disposed of criminal proceeding...(para-9). Azizur Rahman Khan Vs. State 1 CLR (2013)- Page 430. S. 247-There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the Code. Unless and until the order of acquittal under section 247 of the Code is revised or set-aside by the higher Court, the same Magistrate cannot set over the matter and set-aside his own order and re-start disposed of criminal proceeding. Azizur Rahman Khan Vs. State, 65 DLR (2013)-HCD-298. S. 247 and 561A-The High Court Division is not powerless to acquit the accused or to quash the proceeding of the case where the allegations are not grave and heinous in nature considering the willful negligence and silence of the complaint taking aid of Section 247 along with Section 561A of the Code of Criminal Procedure. Abu Azam Md. Yunus Miah Vs. State, 18 BLC (2013)-HCD-74. S. 247-An order under this section can be set aside or restored only by the Higher Court in appeal or revision and not by the same Court passing the order. There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the Code of Criminal Procedure. Though the trial was not held the order of acquittal was recorded under a specific provision of law which is either appellable or revisionable before the higher Court. Unless and until the order of acquittal under section 247 of the Code of Criminal Procedure is revised or set aside by the higher Court, the same Magistrate cannot set over the matter and set aside his own order and re-started disposed of criminal proceeding. There is no provision for restoration of such criminal case.. (Para-9). Azizur Rahman Khan Vs. The State, I Counsel (2013)-HCD-102. Section 247-There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the Code. Unless and until the order of acquittal under section 247 of the Code is revised or set-aside by the higher Court, the same Magistrate cannot set over the matter and set-aside his own order and re-start disposed of criminal proceeding. Azizur Rahman Khan vs State. 65 DLR 298 Sections 247/561A-An order of acquittal passed under section 247 of the Code being appealable which lies to the High Court only, the Sessions Judge/ Additional Metropolitan Sessions Judge, had no jurisdiction to entertain the revision which is not maintainable; that as the revisional proceeding being not maintain- able before the Sessions Judge, the proceeding was before a court which is quorum non-judice and hence the impugned order setting aside the acquittal is void abinitio. Md Ismail vs State, 64 DLR 473 Sections 249, 339C(4) & 403—Fresh proceeding on self-same facts against the same accused persons after a proceeding is stopped and the accused is released—When a proceeding is stopped without a judgment either of acquittal or of conviction and the accused is released, it does not operate either as acquittal or discharge—the same proceeding is not revivable unless there is legislative intent to that effect. Section 339C(4) was inserted providing for revival within 90 days those proceedings of which trial was stopped—In the present case, more than 90 days having elapsed before the Ordinance came into force and revival of the proceeding being out of question, there was no legal bar against fresh prosecution on same allegations. Taking cognizance for the second time must however depend on facts and related considerations of each case—Fresh cognizance should not be taken where there is default in taking revival proceeding without sufficient cause. Niamat Ali Sheikh vs Begum Enayetur Noor 42 DLR (AD) 250. Section 250—The Assistant Sessions Judge acted beyond jurisdiction in making the impugned order under section 250 CrPC as the offence under section 382 Penal Code is triable by Court of Sessions, and not by a Magistrate. The offence under section 382 of the Penal Code being triable by a Court of Sessions and not by a Magistrate the Assistant Sessions Judge acted beyond his jurisdiction in making the impugned order inasmuch as, provisions of section 250 of the Code of Criminal Procedure do not relate to an offence which is not triable by the Magistrate. Karimdad vs Abul Hossain 40 DLR 441. Section 250-Section 250 CrPC empowers only a Magistrate to invoke the said provisions while trying a case by him he finds that the accusations are false and either frivolous or vexatious and the same does not empower an Asstt. Sessions Judge. Karimdad vs Abul Hossain 40 DLR 441. ection 265 I (3) Restricted the number of defence witnesses- The Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the facts and circumstances of the instant case the trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. Monirul Islam Khan -VS- Anti Corruption Commission, [4 LM (AD) 389] Sections 265 I(3) and 342-The Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. The trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. Monirul Islam Khan vs State, 70 DLR (AD) 104 Section 265A—ln sessions cases of this nature it is the Public Prosecutor who represents the State as provided under section 265A of the Code of Criminal Procedure. In such cases the role of an Investigation Officer is that of a witness. If such an application is to be filed it ought to have been filed through the Public Prosecutor. Rahmatullah vs State 48 DLR 158. Section 265B—From a scrutiny of this section it does not appear that the section requires the actual production of documents before the court. Securities and Exchange Commission vs Abu Tyeb 55 DLR (AD) 47. Sections 265B, 265C, 265D & 265E— Sections 265B, 265C, 265D and 265E form a composite session and steps to be taken under these sections are to be taken in the same session. No question arises of fixing another date for taking steps under section 265C or of separate hearing under section 265C of the Code. Securities and Exchange Commission vs Abu Tyeb 55 DLR (AD) 47. Section 265C—ln discharging an accused under section 265C of the Code, the Court is obliged to record the reasons for so doing, which reasons should be reasonable. Ferdousi Islam vs Nur Mohammad Kha 54 DLR 418. Section 265C-At the time of charge hearing, the Court of Joint Metropolitan Session in true sense had no legal scope to consider or decide those facts and it was therefore well justified to refuse the prayer filed under section 265C of the Code. Majharul Hoque Monsur va Mir Kashim Chowdhury, 69 DLR 241 Section 265C-It will be just and proper to say few words regarding the impugned order. The Trial Court in his impugned order used the short abbreviation like SPP. We fail to understand what he tried to mean to introduce the said letter in the order. There is no scope to use this type of abbreviation in the Court proceeding. Over and again there were 6 accused in the case but the Tribunal discharged only one accused from the case although he did not mention his name. The sprit of the order says that he discharged all the accused from the case. This type of order clearly indicates the non application of the judicial mind of the presiding Judge which we can not expect from a senior Judicial officer holding the post of District Judge. Mosammat Beauty vs Miraj Hossain, 70 DLR 854 Section 265C—The admitted position is that the respondent was the Chairman of the Company and she was never involved in the business of stock brokerage—In the absence of any allegation in the complaint-petition, the High Court Division rightly discharged the respondent from the charge. Securities and Exchange Commission, represented by its Chairman vs Runa N Alam 57 DLR (AD) 161. Section 265C—The accused has no scope to have any shelter under Section 265C of the Code since a prime facie case has already been disclosed against him. Md Lokman @ Lokman vs State 63 DLR (AD) 156. Sections 265C, 241A & 202(2B)—Discharge under the provisions of these sections is of different character than the discharge of the accused under sub-section (2B) of section 202 where discharge is made before taking of the cognizance. In our view there is no scope for making further enquiry after discharge if the accused under sections 241A or 265C of the Code as the same is made after taking cognizance. Moreover at the time of hearing under section 241A or under section 265C the court considers the record of the case, the documents submitted therewith and the submissions made by both parties. So, all necessary materials are before the court and as the order is passed on consideration of all such materials, there is no scope for passing any order for holding further inquiry. But there is scope for further enquiry when accused is discharged under the provision of sub-section (2B) of section 202 of the Code as the said order is made before taking of the cognizance. Abdul Hai vs State 50 DLR 551. Section 265C and 265D—While framing charge against the accused the trial Court is to apply independent judicial mind to the facts and circumstances of the case and the materials on record, particularly the First Information Report, so as to be satisfied that innocent persons are not harassed unnecessarily. Khandaker Md Moniruzzaman vs State 47 DLR 341. Sections 265C, 265D & 439—High Court Division under section 439 of the Code of Criminal Procedure having supervisory jurisdiction can scrutinise and go into facts to examine the propriety of the orders passed under section 265C or 265D of the Code. Jobaida Rashid vs State, represented by the Deputy Commissioner; Dhaka 49 DLR 373. Section 265C & 265D—Sections 265C and 265D are abridged substitutions of the now repealed chapter XVIII of the Code of Criminal Procedure and these cast a duty upon the Sessions Judge to apply his judicial mind in considering the materials collected by the prosecution in order to come to a decision whether charge should be framed. Jobaida Rashid vs Stale, represented by the Deputy Commissioner; Dhaka 49 DLR 373. Sections 265C, 265D & 221-223—আসামী পক্ষ থেকে মামলা অব্যাহতি দেয়ার জন্নে কোন দরখাস্ত দেয়া হোক বা না হোক আসামীর বিররদ্ধে অভিযোগ গঠন করা হবে কি না সে সম্পর্কে ২৬৫ সি ও ২৬৫ ডি ধারার বিধান অনুযায়ী দায়রা আদালত তথা যে কোন ট্রাইবুনালের দায়িত্ব হচ্ছে উপরোক্ত বিষয় বিবেচনা করে এবং পদক্ষের বক্তব্য শুনে সঠিক সিদ্ধান্ত উপনীত হওয়া । শুধুমাত্র এজাহারে নাম উল্লেখ থাকলে এবং আসামীর বিরুদ্ধে পুলিশ অভিযোগপত্র দাখিল করলে বা অভিযোগের দরখাস্তে আসামীর নাম উল্লেখ থাকলেই তার বিরুদ্ধে যান্ত্রিক ভাবে অভিযোগ গঠন করা সমীচীন নয় । Nazrul Islam vs State 50 DLR 103. Sections 265C & 561A—We do not find any reason to quash the instant criminal case by involving our inherent jurisdiction under section 561A CrPC as the Code under section 265C provides for an alternative remedy. Salahuddin vs State 51 DLR 299. Section 265C & 265D—The Tribunal without considering the facts and circumstances and materials on record and applying its judicial mind to the provisions of section 265C and 265D of the Code of Criminal Procedure framed charge mechanically. The impugned order framing charges against the accused is thus liable to be set aside. Ruhul Amin Kha vs State 56 DLR 632. Sections 265C and 435/439—The order of the Additional Sessions Judge discharging the accused is not based on correct appreciation of the facts disclosed in the first information report and charge-sheet, and therefore, it suffers from illegality. Abdur Rahman Kha vs Stale 56 DLR 213. Sections 256C and 265D—The provisions of section 265C and 265D are mandatory. A duty is cast upon the Court to scrutinise the record and the document submitted there before discharging or framing a charge in a case as the case may be. Just because name of a particular person is mentioned in the FIR or charge-sheet is not sufficient to frame charge against him or frame charge mechanically so that innocent person may not be harassed on false and vexatious allegations. Debobrota Baiddya Debu vs State 58 DLR 71. Sections 265C & 561A—Procedural law is generally applied retrospectively, hi the cases here neither cognizance has been taken nor charge framed. As such it cannot be said that proceeding was pending before the Magistrate, when the law comes into operation. Shafiqul Islam vs State 61 DLR 280 Sections 265C & 561A—Whether the accused received the legal notice or not, it is merely a disputed question of fact and the same should be decided in trial. The plea of the accused is nothing but the defence plea. Be that as it may, the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial, when there is aprimafacie case for going for trial. Shamsul Alam vs State 60 DLR 677. Section 265C-There is no scope to consider the extraneous or defence materials at the time of framing of charge. Stale vs Kamrul alias Kamruzzaman (Criminal), 73 DLR (AD) 224 Section 265D—Statements made under sections 164 and 161 CPC are documents on record within the meaning of section 265D. State vs Auranga @ KM Hemayatuddin 46 DLR 524. Sections 265E and 412—There is no bar to the acceptance of the plea of guilty, even cases involving capital punishment or imprisonment for life—But no conviction should normally be based on the plea of guilty. The practice has been that the plea of guilty in such cases is not usually accepted. It is desirable for the Court to record the evidence and judge the case in the light of the evidence so recorded. Sheikh Mujibur Rahman @ Razibulla vs State 58 DLR 393. Sections 265E and 412—An accused person who pleads guilty and is convicted has no right of appeal except as to the extent or legality of the sentence. ‘Where the facts alleged by the prosecution do not amount to an offence, the plea of guilty of an accused cannot stand in the way of his acquittal and section 412 of the Code cannot bar an appeal from his conviction. Sheikh Mujibur Rahman @ Razibulla vs State 58 DLR 393. Section 265G—The mere fact that witnesses examined were not mentioned in the FIR is no ground for disbelieving them. Siraj Mal vs State 45 DLR 688. Sections 265G & 37—Submission of sentence for confirmation—the order of conviction under section 302 Penal Code by the Sessions Judge on the basis of part of the evidence recorded by an Assistant Sessions Judge, who is not competent to hold trial under that sections is illegal. The death reference is rejected and the case is sent back for re-trial of the condemned-prisoner in accordance with law and in the light of observations made. State vs Imdad Au Bepari 42 DLR 428. Editors’ Note: In the instant Criminal Revision question came up for consideration as to whether the Sessions Court had power or authority to acquit an accused under section 265H of the Code of Criminal Procedure without examining any witnesses or without exhausting the legal procedures for compelling the attendance of the witnesses. The High Court Division examining relevant laws, particularly, Rule 638 of the Criminal Rules and Orders (Practice and Procedure of Subordinate Court), 2009 and case laws held that in exercising the power under section 265H of the Code, the Sessions Court must take necessary measures to secure the attendance of the witness and comply all the relevant procedures according to law before acquitting any accused. Consequently, the rule was made absolute. Section 265H of the Code of Criminal Procedure, 1898: From a plain reading of the provisions of section 265H it transpires vividly that after framing charge against the accused, the Sessions Judge is bound to examine witnesses and upon hearing the prosecution as well as defence if he considers that there is no evidence to proceed against the accused then the Court should pass an order of acquittal to acquit the accused. Recording the evidence before passing such an order is mandatory under section 265H of the Code. (Para 12) Section 265H of the Code of Criminal Procedure, 1898: Necessary measures should be taken to secure the attendance of the witness: Our considered view is that in exercising his power under section 265H of the Code, the Sessions Judges, at first, shall take meaningful steps for securing the attendance of the witnesses; and secondly: if any witness is available record the same; and thirdly: in case of non-availability of any other witnesses, take hearings from both the parties and thereafter shall pass an order of acquittal of the accused. (Para-20) Section 265H of the Code of Criminal Procedure, 1898: The Court must exhaust all the procedure for taking down evidence before passing the order of acquittal: Under the provisions of section 265H of the Code the duty of a Sessions Judge is to look into the prosecution evidence and materials brought out in the examination of the accused and thereafter should hear the learned Advocates of both sides and considering the evidences and materials on record if he finds that all the procedures under the law have been exhausted and if he is of the opinion that he has taken all possible steps for taking down the evidences of the prosecution but the prosecution has miserably failed to comply with the order of the Court, in that case, the duty casts on the Court to pass an order of acquittal of the accused. But in the present case, it appears manifestly that the learned Joint Sessions Judge without complying with the relevant laws and procedures has illegally dismissed the petition filed by the prosecution with the observations that the prosecution is not willing to adduce evidences. [18 SCOB [2023] HCD 294] Section 288 [omitted by Ordinance XLIX of 1978]—Two ways of making the previous recognition of the accused admissible in evidence. Rules stated in 1925 AIR (All) 223 have been relied on by the State (Respondent). One way, being by putting in his statement before the committing Magistrate under section 288 CrPC and “The other method is to elicit from the witness at the trial a statement that he identified certain persons at the jail and that the persons whom he there identified were persons whom he had seen taking part in the dacoity. Ratan Kha vs State 40 DLR 186. —Principle of identification of an accused by witness in dock when there was a previous TI parade—Circumstances when a witness cannot possibly identify the accused in dock stated. Ratio decidendi in 1925 AIR (All) 223 approved. We are in respectful agreement with the ratio decidendi reported in 1925 AIR (All) 223. —It is well-settled that the evidence that a witness gives in the witness box is the substantive evidence and it is always desirable that the witness should be able to identify the accused persons in dock when there was a previous TI Parade, but owing to lapse of time and other compelling reasons it may not be possible for the witness to identify the accused persons in dock. Ratan Kha vs State 40 DLR 186. —Failure of witnesses to identify accused persons who are strangers to the witnesses— Identification if made without naming them Court’s duty to sift evidence in that circumstance—Any statement, express or implied, made by a witness identifying the accuseds but without naming them, it qualifies as substantive evidence—Test of. Ratan Kha vs State 40 DLR 186. —Improbable suggestion categorically denied by PWs. That the appellants were taken either to the house of the informant or to the police barrack first and were shown to the PWs 1- 3 before the TI parade has no leg to stand upon. Ratan Kha vs State 40 DLR 186. Tender of pardon to an accused The sole purpose of granting pardon to an accused is to procure evidence against other accused persons when the prosecution is faced with the difficulty of gathering evidence to bring home the charge against them. An accused is granted pardon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concemed, whether as principal or abet- tor, in the commission of the offence-Cr.P.C S. 337 Md. Zakir Hossain @ Jakir Hossain and others Vs. The State, 14BLD(HCD)509 S. 300. Exception 4-Exception 4 has an in-built exception to it which provides the offender would not get the benefit of this exception if he takes undue advantage or acts in a quarrel or unusual manner. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-HCD-213. Giving of below on the head of the deceased after snatching away from deceased any substance capable of causing harm and inquiry are undue advantage, acts in a cruel and unusual manner. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-HCD-213. S. 323-The long pendency of case against accused and long sufferings in demand giving of benefit of doubt will meet the ends of justice instead of sending the case on remand for fresh examination. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-123. Sections 337, 335 and 339(1)—Certificate of the Public Prosecutor necessary for the prosecution of a person who has earlier accepted pardon. This section of the Code provides that a person who earlier accepted the pardon may be tried for the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion the person has either wilfully concealed anything essential or had given false evidence and has not complied with the condition on which the tender was made. This implies that the whole basis for the prosecution of a person to whom pardon has been tendered under section 337 or 338 of the Code for the offence in respect of which the pardon was tendered is a certificate by the Public Prosecutor that in his opinion the person who has accepted the pardon has either wilfully concealed anything essential or had given false evidences and has not complied with the condition on which the tender was made. Angur vs State 41 DLR 66. —Prosecution of approver who has not [complied with the condition on which pardon wasreceived. Angur vs State 41 DLR 66. Sections 337, 338, 342 and 494—Unless the ditions are attached before allowing his application, it cannot be said that the accused has been legally pardoned for examining him as an accomplice. Therefore, attachment of terms of which he has been tendered is a condition precedent in allowing an application under section 338. State vs Ershad Ali Sikder 56 DLR 185. Section 339B—The High Court Division did not give any finding on this point of circulation of the newspaper. Since it is a question of fact about the sufficiency or otherwise of circulation of the newspaper this cannot be raised at this stage. State vs Anowar Hossain Pinto alias Anowar Hossain 61 DLR (AD) 108. Section 339(1)—The defects pointed out above are not cured by the provisions of the said section of the Code. Here in the present case before us the prosecutor who conducted the earlier sessions case in the 4th Court of Assistant Sessions Judge Mymensingh has not issued any certificate as required under sub-section (1) of section 339 CrPC and there is also no finding that the approver has broken the condition on which the pardon was tendered which is sine qua non for prosecuting an approver. In that view of the matter we are of the view that section 537 has no manner of application in this case. Angur vs State 41 DLR 66. Section 339(1)—No material available to conclude that TI parade was conducted legally. Appellant entitled to benefit of doubt. From the materials on record it is also found that this appellant was produced before the Court on 4-6-78 for the first time and thereafter was produced in Court on various occasions before the holding of the TI Parade on 11-6-79 and definitely therefore, it was possible for the witnesses like PW 3 Joynal to see the appellant in Court. In such circumstances of the case the identification by PW 3 in the TI Parade is found to be quite unreliable and without any significance. Furthermore, the Magistrate who conducted the TI Parade has not been examined during the trial. There is no material before the Court to find definitely that the TI parade was conducted legally and after observing legal formalities. In view of the above it is found that the identification of appellant Angur by PW 3 Joynal is very much unreliable and the appellant is entitled to the benefit of doubt. Angur vs State 41 DLR 66. Section 339(1)—Conviction of the appellant who was identified by PW 3 who saw the appellant earlier while deposing as PW 7 in the case is not sustainable. Angur vs State 41 DLR 66. Section 339(1)—Non-compliance of section 339(1) CrPC by the APP. In the present case before us the Assistant Public Prosecutor who conducted the case before the Assistant Sessions Judge, 4th Court, Mymensingh has not issued any certificate regarding his opinion as contemplated under sub-section (1) of section 339 of the Code of Criminal Procedure. Angur vs State 41 DLR 66. The petition for prosecuting the appellant (approver) by the successor APP cannot be termed as a certificate contemplated under section 339(1) of the Code. The Assistant Public Prosecutor who conducted the case before the Assistant Sessions Judge, 4th Court, Mymensingh filed a petition before the trial Court on 8-12-82 praying for the prosecution of the present appellant (Approver) as, according to him, the appellant has not fulfilled the conditions on which pardon was tendered and accepted. The learned Assistant Sessions Judge on the basis of this petition directed for framing charge against the appellant. This petition dated 8-12-82 and the petition dated 23-3-85 submitted by successor APP Mr. Khan at Kishoreganj cannot be termed as a certificate issued by the Public Prosecutor as contemplated under section 339(1) of the Code. Angur vs State 41 DLR 66. Section 339(1)—Condition for tendering pardon—Enmity between the approver and the other two accused—Whether such pardon is a pardon on condition. Furthermore, from the perusal of the record it is found that as regards the condition for tendering pardon it is at best a pardon on the condition that the approver will speak the truth and in this case he has spoken the truth by saying that he implicated accused Jamir and Sattar as he had litigation and disputes with them and, on the other hand, none of the other witnesses said that accused Jamir and Sattar participated in the dacoity or were present there. Angur vs State 41 DLR 66. Sections 339(1) & 537—Certificate required under section 339(1) CrPC. If not complied with section 537 has no manner of application. The defects pointed out above are not cured by the provisions of the said section of the Code. Here in the present case before us the prosecutor who conducted the earlier sessions case in the 4th Court of Assistant Sessions Judge, Mymensingh has not issued any certificate as required under sub-section (1) of section 339 CrPC and there is also no Finding that the approver has broken the condition on which the pardon was tendered which is sine qua non for prosecuting an approver. In that view of the matter, we are of the view that section 537 has no manner of application in this case. Angur vs State 41 DLR 66. Section 339(1)(2)(3)(4)(6)—Time for disposal of criminal cases—”Working days” mean “working days of a particular Judge or a Magistrate” and not the “working days of a particular Court”. Aminul Huq vs State 40 DLR 144. Section 339B—Frequent adjournment of criminal trial—Court’s duly in the matter— Disinterested witnesses are losing interest to appear before the Court to avoid harassment of going to court again and again. It is desirable in the interest of administration of justice that witnesses be summoned on a day when the Court is in a position to examine them. No adjournment at the instance of any party should be allowed causing inconvenience to witnesses. Practice of adjourning criminal trial frequently on the prayer of the defence in spite of appearance of prosecution witnesses on the ground of absence of any accused overlooking provision of section 339B CrPC is contrary to law and should be discontinued. Mahbubur Rahman Khan vs State 45 DLR Section 339B-Section 339B of the Code provides two procedures for trial of an accused person in absentia. Sub-section 2) provides that when an accused person has absconded after being enlarged on bail or concealing himself so that he cannot be arrested and produced for trial, the court after recording its opinion so to do, try such person in absentia. The court need not split up his case or to exhaust the procedures required for holding trial of an accused who has absconded from the beginning. An appeal being the continuation of the original procee-ding, section 3398 is equally applicable to the appellate court. (PER SK SINHA, JAGREEING WITH MO ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Publication of Notification In the absence of any notification in respect of the absconding accused in any newspaper, the Special Judge acted illegally in proceeding with the trial in violation of the express provision of law-Cr.P.C S. 339B(1) Md. Jamsed Ahmed Vs. The State, 14BLD(HCD)301 Section 339B—Accused facing trial on capital charge—Entitled to be defended by a lawyer even if the trial is held in absentia— Court’s responsibility to appoint a lawyer to defend—Section 339B CrPC does not come in conflict with the rule of PR Manual—Cardinal principle of criminal administration of justice stated. State vs Jahaur Ali 42 DLR 94. Section 339B—The appellants were tried in absentia although they were in custody in connection with another case and not produced in the present case for no fault of their own. In such a position prayer for fresh trial is not entertainable. Muslim vs State 47 DLR 185. Section 339B, sub-section (1)—Failure to publish the order in at least one Bengali daily news-paper is violative of the provision of section 339B CrPC and also of principle of natural justice. Moktar Ahmed vs Hazi Farid Alam 42 DLR 162. Sections 339B(2) & 512—Since section 339B(2) provides for absentia trial, section 512 has no application in the case of an accused who appeared before the court but thereafter absconded. Baharuddin vs State 47 DLR 61. Section 339C—Provisions of this section s not merely a procedural law. It is a law vesting the accused with a right which could not be taken away by a subsequent amendment if the law. Abu Sufian vs State 45 DLR 610. Section 339C—Section 29 of the Special Powers Act makes the Code of Criminal Procedure applicable to the proceedings of the Special Tribunal—the time-limit imposed by section 339C CrPC will also apply to the procee-dings of Special Tribunal. Chand Miah vs State 42 DLR 97. Section 339C—”Working days” for disposal of criminal cases—stopping proceedings for release of the accused—”Working lays” of the Court—”Working days” shall bç understood to mean the “Working days” during which the learned judge will hold the charge of the trial Court—A Division Bench of the High Court Division rightly excluded the period of 53 days from the statutory period for the trial s the Additional District Judge held the charge of the District and Sessions Judge for 53 days which were not treated as “Working days” for the trial Court. The application for quashing the proceedings rightly rejected. Abul Kashem vs State 40 DLR (AD) 97. Section 339C read with Ordinance No. 37 of 1983 (coming into force on 8-8-1983 extending the time-limit upto 30-6-1985 in his case and later on fmally upto 30-9-1985) Charge-sheet was submitted on 16-6-83 before SDM who in due course forwarded the record to the Sessions Judge for trial. The case comes within the ambit of the lime limit of the Ordinance No. 37 of 1983 which was intended to save such trials. Construction put to the Ordinance by the HC Division is not correct to conclude that this case is “not pending” on the date of commencement of the Ordinance. State vs Madhu Mridha 40 DLR (AD) 99. Section 339C—Concluding a trial beyond time—The Sessions Judge having received the case for disposal on 8-12-84 and delivered his judgment on 29-9-87 long after the expiry of the stipulated time for disposal of the case the trial was without jurisdiction and the conviction illegal in view of the provision of section 339C. Abdul Quddus vs State 44 DLR 441. Section 339C—The provision of this section does not show legislative intention to permit exclusion of the days of adjournment taken by the defence or non-production of the accused in a case on the ground of illness. Motiar Rahman vs State 47 DLR 593. Section 339C, 339D(b)—Section 339C and 339D(b) of the Code are inconsistent with the provision of section 8 of the Ordinance and due to this inconsistency these two provisions 339C and 339D(b) are not applicable in the cases revived under the Ordinance. “Working days” of the Court as provided in section 339D(b) cannot be brought into the ambit of section 8 of the Ordinance. The provisions of section 8 provided that trial of such cases must be concluded within two years from the date of commencement of the Ordinance. In the present case it appears that the case was revived on 17-2- 87 and in view of the provision of section 8 the trial ought to have been concluded within 20-1- 87. But the trial Court failed to conclude the trial within that period and when the petitioner approached the court for stopping the proceeding his prayer was rejected applying the section 339D(b). But in view of the above the provision of section 339D(b) has no manner of application. Abdul Nur Mehidi vs State 46 DLR 303. Section 339C(6)(b)—The trial could not be held for 26 working days of the Tribunal as the accused after being released on bail remained absent. The absence is on his own peril and he cannot take advantage of his own wrong so as to ask for deduction of 26 working days. Humayun Kabir vs State 46 DLR 410. Section 339C—Non-working days of a particular judge for reasons beyond his control like unsuitable working condition in the Court room should be excluded while computing the working days. Abdul Motaleb Shaque vs State 47 DLR 24. Section 339C—The days on which the case was adjourned due to default of the accused should not be considered as working days, otherwise it will be easy for the accused to stretch the trial beyond the statutory period. Abdul Motaleb Shaque vs State 47 DLR 24. Section 339C—The whole purpose of unamended section 339C was to whip up the prosecution and activise the trial Court so as not to delay the trial of a case unnecessarily. Abdul Wadud vs Slate 48 DLR (AD) 6. Section 339C—The Sessions Judge made a mistake in holding that after receipt of records of the case for trial in December 1988 by his predecessor, a fresh period of 270 days will start for him to complete the trial since he had taken charge of the Sessions Division in January 1991. Section 339C referred to an office, not a person. Abdul Wadud vs State 48 DLR (AD) 6. Section 339C, 339D(b)—Section 339C and 339D(b) of the Code are inconsistent with the provision of section 8 of the Ordinance and due to this inconsistency these two provisions 339C and 338D(b) are not applicable in the cases revived under the Ordinance. Abdul Nur Mehedi vs State 46 DLR 303. Sections 339C(1)(4)(6), 435 and 439— Section 339C(4) does not provide for abating any case nor does it provide for acquittal of the accused but merely provides for stopping the trial of the case and releasing the accused’ person— Impugned order by the learned Magistrate suffers from manifest illegality as only 22 days out of 30 extended days have passed—339C(6) provides for counting of working days in determining the time for disposal of cases. Sultan Ahmed vs Golam Mostafa 40 DLR 85. Section 339C(2)(3)(4)(6)—Time for completion of trial of Sessions case within the statutory period of 270 days including the extended time— Case pending before the sessions Judge, Narail since 12-12-1985—After examination of one witness the petitioner filed a petition under section 339C(4) of the Code for release of the accused petitioner on he ground that the specified period of 240 lays and extended time of 30 days totalling 270 working days for trial of the accused petitioner had already elapsed—Dictionary meaning of the word is not a safe guide for interpreting an expression in a statute—Calculation sheet showed that more than 361 working days of the court had passed from 12-12-85 to 30-3-87 and the number of 361 days excluded only holidays and Fridays but not the days during which the Sessions Judge could not sit in court when the Court was open— “Working days” shall be interpreted as ‘working days” of the Judge and not of the Court—Non- working days of a particular Judge for reasons beyond his control should be excluded from the “working days” when counted. Ekramul Hoq vs State 40 DLR 139. Section 339C(4)—It was incumbent upon the Special Tribunal to allow the accused to go on bail when it could not complete the trial within the time provided. RaJIq Hasan alias Biplob vs State represented by the Deputy Commissioner 48 DLR 274. Sections 339C(4) & 497—Besides inordinate delay in prosecuting the trial of the case and the provision of section 339C(4) of the Code, the fact that the appellant has been suffering from enlarged prostate gland and problems in his urinary track attracts the proviso to section 497 CrPC for consideration to enlarge the accused on bail. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33. Sections 339C(4) and 498—Even in a non- bailable offence the accused is entitled to be enlarged on bail unless the Court decides otherwise assigning reasons which are relevant to the fact of the case. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33. Sections 339C(4) & 498—The prosecution could not give plausible reason for inordinate delay in proceeding with the case—This circumstance can be considered as a ground for granting bail to an accused. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33. Sections 339C(4) & D—Revival of a case— By the use of expressions in an unambiguous manner the legislature has left absolutely no doubt that the limitation regarding making an application by the Government to the court for revival of the relevant case shallrun from the date on which the court concerned actually stopped the proceedings and not from the date on which the proceedings of the trial of the case should have been stopped. AHM Kamaluddin vs State 43 DLR 294. Section 339C, sub-section (6)—Criminal trial—”Working days” to be counted in determining the time for disposal of criminal cases— “Working days” mean the days on which a Judge works as such. So, the days when the learned Sessions Judge was on leave and outside the stations should not be regarded as “Working days” of the learned Sessions Judge. The court is of the opinion that these days should be excluded while computing the time required for disposal of the sessions case. This being the legal position 150 days did not expire in the present case and application for stopping of the proceeding of the sessions case and for release of the accused petitioners has rightly been rejected. Akbar Au vs State 40 DLR 29. Section 339C-The whole purpose of unamended section 339C of the Code was to whip up the prosecution and to make the trial Court more active so as not to delay the trial of a case unnecessarily. The stopping of a case and the release of an accused would rouse the prosecution from its slumber and would necessarily subject it to accountability. The purpose was not to give the accused a right not to be tried any more on the same charge or a clean bill of acquittal, even if he was accused of a heinous crime. Stoppage of the trial did not mean an end of the woes of the accused. A revival would revive his woes. State vs Shajahan Bepari, 67 DLR 140 Section 339C and 339D-The new Act was not given a retrospective effect, but inspite of repeal of section 339D of the Code (provision of revival of a stopped proceeding), provision was made in section 6 of the new Act for application of section 339D of the Code, as if it was not repealed, when, before the coming into force of the new Act, (i.e. on the 1st November, 1992), a proceeding was already stopped under the unamended provision of sub-section (4) of section 339C of the Code. If a proceeding is now stopped after the coming into force of the new Act either by the High Court Division or by this Court, the prosecution will not have any corresponding right of revival of the proceeding under the repealed provision of section 339D of the Code. State vs Shajahan Bepari, 67 DLR 140 Section 339C(4)- In view of repeal of sub-section (4) of section 339C of the Code followed by re-enactment of the said sub- section the new procedural law will be applicable in the pending cases, although instituted when the old provision was in force and the pending cases are to be governed by the new procedure under the amended law. Sub-section (4) of section 339C of the Code as amended by Act XLII of 1992 will be applicable to the pending case. Proceedings was not stopped and the accused was not released and in view of the Act XLII of 1992 the accused will not accrue any vested right to be released as the same is procedural law having retros pective effect. Hanif vs State, 70 DLR 92 Section 339D—Revival of a case under section 339D. Under the scheme of the Code itself, the Public Prosecutor is competent to file application for revival of a ease on behalf of the Government without any authority or instruction whatsoever. Dr SM Abu Taher vs State 42 DLR 138. Section 339D—The petitioner being the full brother of the deceased victim and a charge-sheet prosecution witness, is no doubt an aggrieved person and competent to file the application for revival of the case. Abdus Sobhan vs Ali Akbar 47 DLR 598. Section 339D—A Public Prosecutor represents the State in a case “of which he has charge” which is under enquiry, trial or appeal. Any action taken by the Public Prosecutor in such a case particularly when a case has been stopped due to expiry of the time-limit (which law has since been repealed) will be deemed to be an action on behalf of the Government so long as the Government do not disown it. Alimuddin vs State 49 DLR (AD) 118. Public Prosecutor The Public Prosecutor is to know the law and has a responsibility to work with utmost devotion keeping in mind that he is representing not a party but the people in the administration of criminal justice. If he fails in his duty, a sessions exception is taken by the Court. The State Vs. Nurul Huq, 13BLD (HCD) Ref: 172 1.C.374; 39 Cr.LJ. 123; A.I.R. 99 1977 (SC)1116; 126 I.C.689; 62 LC. 545; P.L.D. 1964 (SC)813; 31DLR. 312; 16 D.L.R. 598; A.I.R.1973(SC)2474-Cited Section 339D—Where a case is revived under section 339D(1) whether the statutory period of 240 days should be counted from the date the case was received by the trial Court after revival or from the date of revival? A careful examination of all the sub-sections of section 339D will show that the sub-section (5) of section 339D reconciles section 339D(4) with section 339C(2) by laying down in an unambiguous language that the starting point of computation of the statutory period in a case revived under section 339D(1) is the date of revival which, according to sub-section 5 of section 339D, is deemed to be dated on which the case is received for trial. Belayet Hossain vs State 46 DLR 413. Section 339(4)—Working days should be understood to mean actual working days during which the learned Judge holds the Court. Nurul Islam Monzoor vs State 53 DLR 59. Section 339(4)—There is no absolute direction to allow bail, even in case of failure to complete the trial within the statutory period, as the mandate, if any, for allowing bail is subjected by the words, “unless for reasons to be recorded in writing, the Court otherwise directs”. Nurul Islam Monzoor vs State 53 DLR 59. Section 340(3)-Even if an witness is arrayed in the category of an accused, his evidence may be taken into consideration under section 340(3) of the Code in support of his defence, any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. Durnity Daman Commission vs Md Gias Uddin-al- Mamun, 68 DLR (AD) 217 Section 340(3)-After a witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. Durnity Daman Commission vs Md Gias Uddin-al-Mamun, 68 DLR (AD) 217 Sections 340(3) and 342-There must be a trial in the criminal court, that the persons applying to be examined under the provision would necessarily be an accused, that after conclusion of recording evidence of the prosecution followed by the explanation/ submission of the accused, as required under section 342 of the Code is over, that the evidence of such accused will be on oath as witness, and that such evidence must be in disproving of the charge made against him or any person charged together with him at the trial. Abdul Momin vs State, 70 DLR 590 Section 340—An Advocate to defend an undefended accused charged with capital offence should be appointed well in time to enable him to study the case and the lawyer should be of sufficient standing and able to render assistance. He should be provided with papers which are ordinarily allowed to the accused. The deficiencies as on the record are due to the appointment of State lawyer without giving him sufficient time to prepare the case. This has seriously prejudiced the accused persons and their defence was materially affected. The State defence lawyer could not to justice to the case of the absconding accused who have been sentenced to death. The impugned order of the learned Sessions Judge convicting and sentencing condemned-prisoner Hanif and convict Waliur to death under sections 302/34 of the Penal Code is set aside and they are directed to be tried of the charge already framed. The case is sent back on remand for fresh trial in the light of the observation made. State vs Hanif Gani 45 DLR 400. Fugitive Fugitive from Law and Fugitive from Justice It is well-settled that a fugitive from justice is not entitled to the protection of law but when he is charged with an offence punish- able with death, he has a right to be defended by a lawyer appointed by the State-Cr.P.C. S. 340 Nurun Nahar Zaman Vs. The State and another, 15BLD (HCD) 537 Fugitive from Law Surrender and custody of the accused When the accused after his conviction surrenders in the Court and the Court after refusing his prayer for bail orders for sending him to jail and he is held up in custody, in the process of being sent to the jail and under such circumstances he executed a vokalatnama duly attested by the Court police on the strength of which an appeal is filed before the Sessions Judge, who grants him bail after condoning the delay, it cannot be held that he was a fugitive from justice. Minhaz A. Chowdhury Vs. Manzurul Huq and another, 16BLD(HCD)154 Section 340—The requirement of law is that irrespective of whether the accused is absconding or not he is as of right entitled to be represented and defended by a lawyer appointed by the court and the trial Court must ensure that it has been done before the commencement of the trial or else the trial and the resultant conviction and sentence would be vitiated. Mobarak Ali vs Bangladesh 50 DLR 10. Section 340—The condemned-prisoner was in custody and he was produced before the court from time to time but he was not represented by any lawyer of his choice. So it was the duty of the court to appoint a lawyer at the cost of the state to defend the condemned-prisoner as the offence was punishable with death. State vs Rabiul Hossain alias Rob 52 DLR 370. Section 340-Right of an accused to be defended by a lawyer in a case charged under section 302 of the Penal Code being punishable with death is, an inalienable right guaranteed in the law of our land and if any trial takes place refusing such fundamental right the trial is a misnomer and the judgment passed convicting an accused is no judgment in the eye of law. Babu Khan vs State 55 DLR 547. Section 340-Right of an accused to be defended by a lawyer in a case charged under section 302 of the Penal Code being punishable with death is an inalienable right guaranteed in the law of our land and if any trial takes place refusing such fundamental right, the trial is a misnomer and the judgment passed convicting an accused is no judgment in the eye of law. Abdul Hannan vs State 61 DLR 713. Sections 340, 342, 343—A self-confessed accused may be treated as an approver but who does not participate in the criminal act along with others cannot be accepted as an accomplice. State vs Ershad Ali Sikder 56 DLR 185. Sections 340(1) & 352—Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader. The law has not given any authority to the learned Sessions Judge to limit the appointment of lawyer by each accused. The order limiting the appointment of lawyer by each accused is absolutely without jurisdiction. Section 352 of the Code of Criminal Procedure provides that the learned Judge of the court will consider the accommodation of the general public in the Court room. If one accused engages for himself one hundred lawyers, the lawyers are entitled to defend the accused and as regards sitting arrangement the Judge will control, but he cannot pass any order limiting the appointment of lawyer. Hossain Mohammad Ershad [former President Lieutenant General (Retd) vs State 48 DLR 95. Section 340(3)—As the accused has right to know about the prosecution’s evidence so the prosecution should have right to know about the accused’s evidence before trial. Ali Akbar vs State 51 DLR 268. Section 340(3)-Expunged Evidence- It is provided in section 340(3) of the Code of Criminal Procedure that any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. A witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. Durnity Daman Commission=VS=Md Gias Uddin-al-Mamun & another, [1 LM (AD) 473] In this connection, we may profitably refer the case of Md. Islam Uddin @ Din Islam Vs. The State reported in 27 BLD (AD) 37 wherein our Appellate Division has observed as under: “7.It is now the settled principle of Law that judicial confession if it is found tobe true and voluntary can form the sole basis of conviction as against the maker of the same. The High Court Division as noticed earlier found the judicial confession of the condemned prisoner true and voluntary and considering the same, the extra judicial confession and circumstances of the case found the condemned prisoner guilty and accordingly imposed the sentence of death upon him. ” In the case of Dogdu V. State of Maharastra reported in AIR 1977 SC 1759 it was observed that when in case involving capital punishment, prosecution demands conviction primarily on the basis of confession, the court must apply the double tests: (1) Whether the confession is perfectly voluntary, and (II) if so, whether it is perfectly true. The Code of Criminal Procedure, 1898, Section 164: It is by now well settled that an accused can be found guilty and convicted solely banking on his confession if, on scrutiny, it is found to be true, voluntary and inculpatory in nature. ...(Para 42) Effect of belated retraction: During making confession, as it appears, the accused did not make any complaint about police torture or inducement. Even, after coming out of the clutches of the police the accused did not also raise any complaint touching the veracity of his confession immediately thereafter. Rather, after almost 5(five) years of making confession the accused filed a retraction application directly to the court which was also signed by an Advocate. Therefore, it can easily be said that such retraction application is nothing but the brainchild of the concerned Advocate. Moreover, no tangible material is found on record in support of the above application which was a belated one as well. In such a posture of things; the confession of accused Hamidul can be regarded as voluntary as well. (Para 48) Appropriateness of quantum of sentence awarded to the convict: Now, we can turn our eyes to the quantum of sentence awarded to accused Md. Hamidul to see whether the same is appropriate in the facts and circumstances of the instant case. Admittedly, there is no eye witness of the occurrence leading to the incident of murder of victim Milon Babu and the fate of the case mainly hinges upon the lone confession of the accused together with some incriminating circumstances. Moreover, as per record, there is no previous criminal history of the accused who has been suffering the pangs and torments of the death sentence for the last about more than 5(five) years for no fault of his own. Therefore, considering the aggravating as well as mitigating circumstances of the case, we are of the dispassionate view that justice would be best served if the death sentence of the accused is commuted to one of life imprisonment along with fine. (Para 51) The Code of Criminal Procedure 1898, Section 342: We would like to put on record one legal infirmity that has been committed by the learned Judge of the court below. On perusal of the impugned judgment and order, it reveals that the learned Judge on his own accord asked as many as 13(thirteen) questions to the accused while he was being examined under section 342 of the Code. Not only that the judge concerned has also used the same against the accused in finding his culpability in the killing of the victim boy. The above approach adopted by the trial Judge is absolutely weird, uncalled for and illegal as well. ...(Para 52) Section 342 of the Code of Criminal Procedure, 1898: It is apparent that the learned Additional Sessions Judge has committed gross illegality in using the statement of accused Md. Hamidul under section 342 of the Code which is all together foreign in criminal jurisprudence inasmuch as a statement given by an accused cannot be used as evidence to find his culpability. ...(Para 53) The State Vs. Md. Hamidul 18 SCOB [2023] HCD 224 Section 342—The accused retracted his confession during his examination under section 342 CrPC—Such belated retraction of confession always creates doubt about its genuineness. State vs Mokammel Hyeath Khan 58 DLR 373. Section 342—The essence of section 342 CrPC is to enable the accused to comprehend the allegations and evidences levelled against him for the purpose of affording him a good defence by bringing and pointing at only the incriminating materials that exist against him. He cannot be vexed with long series of questions. Ibrahim vs State 58 DLR 598. Section 342—It appears that while examining the accused-appellants under section 342 of the Code of Criminal Procedure the trial Court failed to put the incriminating evidence against the accused-appellants for the purpose of enabling them to explain any circumstance and thereby the accused-appellants have been prejudiced. Shahid Mia vs State 60 DLR 371. Section 342—It is well settled that at the time of examination of the accused under section 342 of the Code of Criminal Procedure his attention must be drawn to the incriminating evidence or circumstances sought to be proved against him, otherwise he would be prejudiced (vide 54 DLR (AD) 60. A Wahab vs State 60 DLR 34. Section 342—Written statement submitted by the appellant when he was examined under section 342 of the Code of Criminal Procedure is not evidence within the meaning of section 3 of the Evidence Act. Such statement is to be considered along with the evidence and the circumstances and if the statement gets support from the evidence on record due weight may be given on it. [Vide 42 DLR (AD) 31]. Thus such statement cannot be the sole basis of conviction. Hasan Md vs State 60 DLR 56. Section 342—It is the fundamental principle of law that the attention of the accused must be drawn to the evidence on record in a precise manner. Kazi Ranimul Islam vs State 62 DLR 6. Section 342—Sending back the case on remand for fresh trial from the stage of the examination of the accused under section 342 of the Code for the purpose of bring the incriminating evidence including the confessional statement to the attention of the appellant cannot be taken as giving of undue privilege to the prosecution to fill up any lacuna. Rather, remand of the case to the trial Court is for removing a procedural defect only which was caused for non-application of the mind of the trial judge. If such type of procedural defect is not allowed to be cured and the accused is acquitted for such procedural defect that will cause great injustice to the informant side who brought the matter before the Court of law for justice. Sohel Sanaullah @ Sohel Sanaullah vs State 63 DLR (AD) 105. Sections 342 & 537—Omission of charge as to common intention—Non-mentioning of section 34, Penal Code during his examination under section 342 CrPC has not in any manner prejudiced the accused in their defence. It is a mere irregularity which is curable and there has been no failure of justice for such non-mentioning. Abul Kashem vs State 42 DLR 378. Sections 342, 164 & 537—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57. Section 344—Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding, where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102. Section 344-In view of the provisions of section 344 of the Code, it appears necessary that the trial of the CR Case No. 2969 of 2004, now pending in the Court of Metropolitan Magistrate, be postponed for a limited period facilitating the disposal of the OC Suit No. 110 of 2002 for Specific Performance of Contract based on Bainapatra dated 10-4-2001 between the parties. Hanjf vs State 60 DLR 634. Section 344—Refusal of prayer for ad- interim stay while issuing Rule in criminal revision. When appellant clearly stated before the High Court Division while obtaining the Rule that she gave birth to a child just five months ago and it would be injurious to her health as also to the baby if both were to be placed under any type of custody at that critical stage it was not a judicious and sound exercise of discretion to refuse the said stay. Azima Begum vs Yusuf Khan 43 DLR (AD) 53. Section 344-Prayer for stay of judgment in criminal case on the ground of pendency of civil suit—Section 344 CrPC authorises the Court to adjourn a trial. That a judgment in a criminal court is pronounced “after the termination of the trial” is provided in section 366 CrPC. Therefore, the prayer for stay of delivery of judgment under section 344 was misconceived. HM Ershad vs State 44 DLR (AD) 145. Section 344-Power to postpone proceedings—Applicability of such power to postpone judgment in a criminal case pending disposal of a civil suit—The application under section 344 CrPC had been moved at a belated stage after the evidence was closed and the trial came to an end. Only because the judgment remains to be delivered, the application does not appear to be one as contemplated under section 344. In fact the petitioner knew of this and prayed for adjournment of the judgment, not of the trial. The application at this stage does not appear to be maintainable. HM Ershad vs State 44 DLR 116. Section 344-Merely for the reason that Bangladesh is a signatory of the Convention of 1966 under which the ICSID has been operating it cannot be said that the petitioner who has been arraigned in our own Court of law for a criminal act constituting the offence of corruption' shall be prejudiced if the proceedings going on in our Court is not kept postponed and adjourned till decision of the ICSID in connection with the said arbitration proceeding. The Court below does not appear to have acted illegally in rejecting the application under section 344 of the Code of Criminal Procedure seeking post- ponement and adjournment pending arbitration proceeding in the ICSID. Besides, in no way the decision of the said International Tribunal dealing with the said arbitration dispute shall have impact upon the proceedings pending in our court to negate the allegation of 'corruption' as the same does not have any binding force upon the legal institution of Bangladesh dealing with criminal proceedings. Moudud Ahmed vs State, 69 DLR 428 Section 344-In exercise of judicial discretion as provided in section 344 of the Code of Criminal Procedure court may pass an order postponing and adjourning the proceedings if it considers it just for securing ends of justice, but of course not for an indefinite period and for no valid reason as well. Moudud Ahmed vs State, 69 DLR 428 Section 344-Stay of criminal proceedings—Remand—A case and counter case over the self-same occurrence are to be tried by the same Court one after another. The judgment in both the cases is to be pronounced on the same date by the same Magistrate so that there is no conflicting decision and the parties are not prejudiced. The impugned judgment and order is set aside and the case remanded back to the Magistrate with direction to try CR Case No. 155 of 1989 and CR case No. 152 of 1989 by the same Magistrate giving opportunity to the parties to adduce their evidence and keeping the evidence already recorded in Cr Case No. 155 of 1989 intact. Sharif vs Md Obaidur Rahman 43 DLR 66. Section 344-The custody spoken of is jail custody. The Magistrate can remand an accused person to custody for a term not exceeding 15 days at a time provided that sufficient evidence has been collected to raise a suspicion that the accused may have committed an offence. Saifuzzaman vs State 56 DLR 324. Section 344—Stay of proceeding in criminal matter when not entertainable—The proceeding under section 138 of the Negotiable Instruments Act appears to be quite independent in nature with a very limited scope for adjudication which is not at all related to the issues involved in the Civil Suit. Moreover, at the fag end of trial of the criminal case, such an application praying for stay order was not at all justified and entertainable. Zafar Ahmed vs Mir Iftekharuddin 61 DLR 732. Section 344—Magistrate can make such order of remand in the absence of the accused if he is seriously ill and cannot be produced in Court. Saifuzzaman vs State 56 DLR 324. Section 344—The accused had already been taken to police remand twice, yet there is nothing before the court to show the outcome of such remand—The respondents are directed not to go for further remand of the accused and in case of the ongoing remand he should not be subjected to physical torture of any kind. Ministry of Home Affairs 56 DLR 620. Section 344—It is desirable that for ends of justice as well as to avoid any future complication all the counter-cases be tried by same Judge one after another which may not prejudice the parties. Tareq Shamsul Khan alias Himu vs State 56 DLR 622. S. 344 Allegation under Section 467 and 471 of the Penal Code Held; We find that the Civil Suit has already been disposed and the allegation made in the petition of revision has no bearing with the complainant's case of Title Suit No. 344 of 1994. It is well settled that the criminal proceedings should not be at all have the indefinite period for the cause of pendency of civil suit. Hedayet Ullah & Ors Vs. The State, 21 BLT (2013)-HCD-103 Section 345(2) An offence under sections 406 and 408 of the Penal Code can be compounded only by the owner of the property in respect of which breach of trust has been committed. The informant was neither the owner or trustee nor had any function in the administration of the trust. He was simply the Vice-President of the Mosque of the trust. By no stretch of the imagination could he be said to have any proprietary interest in the trust property. Simply it can be stated that he is not the owner of the property in question. Not being the owner of the trust property, the informant did not have the capacity to compound the case. Nurul Alam vs Saleha Khatoon (Criminal), 73 DLR (AD) 153 Section 349A—Sessions Judge acted illegally in deciding the case upon the evidence recorded by the Special Martial law Court. This was the precise argument made on behalf of the respondents in the High Court Division which should have been upheld but the High Court Division misdirected itself in relying upon paragraph 4 of the Proclamation of Withdrawal of Martial Law dated 10-11-86. Although the reason was wrong but its conclusion was right that the order of conviction and sentence was illegal and without jurisdiction. Martial Law Court. State vs Golam Mostafa 49 DLR (AD) 32. Sections 364 & 164—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim vs State 51 DLR 466. Sections 364 & 164(3)—The provisions under these two sections are mandatory and required to be strictly followed to make the confession voluntary and true and fit for reliance for convicting the accused on his confession. Abul Hossain vs State 46 DLR 77. Section 367—There has not been any miscarriage of justice caused by non-compliance with the provisions of section 367 CrPC while acquitting the accused persons by the Magistrate though his judgment was not in proper form. Nurul Huda vs Bhashanu Sardar 40 DLR (AD) 256. Section 367—Judgment—Writing of a proper judgment—If the trial Court’s judgment is such that it cannot be termed as a judgment as per requirement of this section, hence an order of writing a proper judgment may be necessary– When the entire matter is open to the criminal Appellate Court which is required by law to assess the evidence independently and come to its finding, then merely because there has been some omission made by the Trial Court in not considering a piece or pieces of evidence, would hardly offer a valid ground for sending the case on remand for a proper judgment. Md Moslehuddin vs State 42 DLR (AD) 160. Section 367—Remand—As a general rule an order for retrial would be proper if the trial in the lower Court was vitiated by illegality or irregularity or for other reason. Md Moslehuddin vs Slate 42 DLR (AD) 142. Section 367—The sentence of only 3 days for the offence punishable under section 475 is shockingly inadequate, as such, the order of enhancement of sentence passed by the appellate Court needs no interference. At the same time, the punishment awarded by the appellate Court but not prescribed by section 471 of the Code is reduced on the ground discussed. Abdul Ahad vs State 58 DLR 311. Section 367 as amended by the Law Reforms Ordinance (XLIX of 1978), Section 2 and Schedule thereto read with the Penal Code(XLV of 1860), Section 302. Substitution of sub-section (5) of section 367 CrPC by the Law Reforms Ordinance—Effect of change on sentencing—Previously death sentence was the normal sentence for murder and the court was required to give reasons if the lesser sentence of life imprisonment was given—After the substitution now reasons have to be given in either case—A death sentence is to be justified in as much in the same way as in the case of lesser sentence of life term imprisonment. Abed Ali vs Slate 42 DLR (AD) 171. Sections 367 & 424—The Additional Sessions Judge sitting on appeal did not apply his mind at all in order to come to an independent decision. He came to the conclusion “found nothing illegal in the impugned order” just after quoting in his judgment some portions of the judgment of the trial Court. In such a position, no Rule need be issued—the case is sent back for delivering a proper judgment. Ekram All Fakir vs Abdus Samad Biswas 47 DLR 53. Sections 367 and 424—While disposing of a criminal appeal, the appellate Court must consider at least the material evidence of the case and arrive at independent findings on all material points at issue. Mere saying that it concurred with the findings of the trial Court is not sufficient to meet the requirements of law. Yasin Mollah vs State 53 DLR 99. Sections 367, 439A and 561A—The revisional court is competent to direct the trial Court to write a fresh judgment in a case where the trial court has failed to discuss and assess the evidence and written its judgment without trying to determine the fact in issue. Abul Hossain vs State 56 DLR 12. Section 367(1)—Mere stating by the Appellate Court that the appeal is dismissed on merit and the order of conviction and sentence is confirmed without considering the evidence on record and the cases of the parties cannot be said to be a judgment on merit. Abul Basher vs State 40 DLR 248. Section 367(1)—Section 367(1) relates to Criminal Court of original jurisdiction but the same has been made to apply to the Appellate Court except the High Court Division by reasons of section 424 CrPC. Abul Basher vs State 40 DLR 248. Section 367-A judgment has a significant social and civic function. After hearing the facts of case, evidence, law points, arguments, the Court will be in a position to pronounce the conviction or acquittal. The purpose for writing good judgment depends much on adherence of the independence, impartiality, fairness and competence, Failure to do so, spirit of judgment will be dying behind the close door. The soul of a judgment are the reasons for arriving at the findings. Before recording finding on a charge, the relevant evidence must be considered and discussed the submissions made on behalf of the parties. The method of arriving at a conclusion is the most important part writing judgment. Anti-Corruption Commission vs (Criminal), 73 DLR (AD) Omar Faruk 218 S. 367-The judgment of the Appellate Tribunal has not touched on the evidence on record at all and has not taken into consideration the grounds of appeal, there is no scope in law for it to be treated in any manner as a judgment. Warid Telecom International Ltd. Vs. Commissioner of Customs (Spl. Statutory), 18 BLC (2013)-HCD-282. S. 367-No power to dismiss an appeal for default and must dispose of the appeal on merit no matter whether the appellant appears or not. Warid Telecom International Ltd Vs. Commissioner of Customs (Statutory Original), 18 BLC (2013)-HCD-188. Section 367 (5)- Capital Sentence: Bangladesh Perspective-Bangladesh, like its neighbours and majority of the commonwealth members, retain capital punishment, though it is limited to capital offences only. Bangladesh general law, as it stands today, is slightly at variance with that in India in that a sentencing Court in Bangladesh must assign reasons whether it awards death sentence or the alternative sentence of imprisonment for life, while in India, only death sentences must be justified by special reasons. General substantive legislation i.e. the Penal Code fixes the penalty that can be awarded, while the general procedural legislation i.e the Code of Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be followed in sentencing a person convicted of an offence punishable under a penal provision of the Pena Code. Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as amended) provides that where the Court condemns a convict with death sentence or in the alternative awards imprisonment for life or for a tem of years, the Court shall state reasons for the sentence awarded. No sentencing section in the Penal Code specify any particular sentence. They do, instead specify the maximum sentence. often with alternative, whether custodial or not, and thereby equip the Court with a great deal of discretion. As death sentence in Bangladesh under the Penal Code is not mandatory and alternative sentence of life imprisonment can, at the discretion of the Court, as discussed above, under the heading "sentencing principles in Bangladesh", be awarded, only in appropriate cases of murder, where aggravating factors outweigh mitigating factors, such as provocation etc. are absent death sentences are passed at the Courts' discretion. Our Courts retribution, general apply deterrence, commensurability, proportionality rationales, motive, personal circumstances of the convict. Antecedent facts leading to the commission of the offence, play decisive role in the determination of sentence. Thus the Appellate Division in Nowsher Ali - V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar V-State (40 DLR (AD) 139) commuted death sentence in wife killing cases because the couple's union were not "blissful" and were rather "rancorous". Death sentences are however deemed appropriate when the convict act in cold blood without provocation, which are so heinous that arouse judicial indignation. Apart from the cases of murder, which are punishable under section 302 of the Penal Code, capital punishment can be awarded for gang rape, trafficking of children, women, for seriously injuring a child or a women by acid throwing under a special legislation called Women and Children Cruelty Act, 2013. While exercising their discretion, take account of all those factors as they take in sentencing a murderer under the Penal Code provisions. (Paras: 1082- 1087); ..... Allama Delwar Hossain Sayedee -VS- Government of Bangladesh, (2 LM (AD) 76] Section 367-Under the present provision, if the accused is convicted for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the court shall in its judgment state the reasons for the sentence awarded. The language of the provision clearly suggests that the sentence of death is the normal penalty and a lesser sentence can be passed when there is any extenuating circumstance. Section 302 of the Penal Code provide two sentences, 'death' or 'imprisonment for life. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214 Sections 367 and 410-A judicial officer, and that too of the rank of an Additional Sessions Judge, is required to evaluate the evidence on record and come to a proper finding in accordance with law and thereafter impose a sentence which is commensurate with the gravity of the offence with which the accused stands charged. Mustaq Ahmed vs State, 64 DLR 301 Section 367-Under the present provision, if the accused is convicted for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the court shall in its judgment state the reasons for the sentence awarded. The language of the provision clearly suggests that the sentence of death is the normal penalty and a lesser sentence can be passed when there is any extenuating circumstance. Section 302 of the Penal Code provide two sentences, 'death' or 'imprisonment for life. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214 Sections 367 and 410-A judicial officer, and that too of the rank of an Additional Sessions Judge, is required to evaluate the evidence on record and come to a proper finding in accordance with law and thereafter impose a sentence which is commensurate with the gravity of the offence with which the accused stands charged. Mustaq Ahmed vs State, 64 DLR 301 Section 368-Section 368 of the Code provides the mode of sentence of death and imprisonment for life has to be imple- mented. In respect of death sentence, the court shall direct that the convict 'be hanged by the neck till he is dead. A life sentence prisoner may be sent to any jail according to the convenience of the jail authority. Ataur Mridha Ataur va State, 69 DLR (AD) 214 Section 368-Both the Government and the Inspector General have power to remove a prisoner from one prison to another. It is not necessary that a person sentenced to imprisonment for life must always be sent to Andamans. He may be kept to local jails under section 368 read with the Jail Code. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214 Section 368-Section 368 of the Code provides the mode of sentence of death and imprisonment for life has to be imple- mented. In respect of death sentence, the court shall direct that the convict 'be hanged by the neck till he is dead. A life sentence prisoner may be sent to any jail according to the convenience of the jail authority. Ataur Mridha Ataur va State, 69 DLR (AD) 214 Section 368-Both the Government and the Inspector General have power to remove a prisoner from one prison to another. It is not necessary that a person sentenced to imprisonment for life must always be sent to Andamans. He may be kept to local jails under section 368 read with the Jail Code. Ataur Mridha @Ataur vs State, 69 DLR (AD) 214 Section 369—Review—Application praying for review of judgment passed in a criminal case is totally contrary to the provisions of section 369. Samad Ahmed vs State 45 DLR 394. Section 369—Judgment in criminal case after it is signed cannot be altered or reviewed except to correct clerical error. There is no question of correcting clerical error in rehearing the matter by setting aside judgment already pronounced and signed. Serajul Islam vs Faziul Hoque 47 DLR 480. Section 369—The provision of section 369 of Code of Criminal Procedure clearly bars alteration of a judgment in a Criminal matter where it is already signed excepting to correct clerical error if any. Mostafa Aminur Rashid vs State 51 DLR 543. S. 369-As soon as the judgment is pronounced and signed by the learned Judges in a criminal case, this Division becomes functus officio and neither the particular Bench itself nor any Bench of the High Court Division has any power to revise override or alter the decision or interfere with it in any way: even if the learned Judges arrived at a wrong decision. MA Motaleb Bhuiyan Vs. State, 18 BLC (2013)-HCD-451. Sections 374 and 376-The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". There is no justification to commute the death penalty to imprisonment for life. Khorshed (Md) vs State (Criminal), 73 DLR (AD) 83 Section 374—Commutation of sentence— extenuating circumstances for commutation — condemned-prisoners are under peril of death sentence for almost 3 years suffering agony and torments and thereby partially purged their guilt. Their life may be spared. Sentence of death commuted to one of imprisonment for life. Abul Kashem vs State 42 DLR 378. Section 374—Accused Rina is a young woman aged 24 with an infant and she confessed expressing repentance. Both the convicts suffered pangs of death sentence for about 3½ years. There are extenuating circumstances for sparing them from the extreme punishment of death. Shahjahan Manik vs State 42 DLR 465. Section 374—Commutation—Delay by itself is no extenuating circumstance for commuting the sentence. There must be other circumstances of a compelling nature which together with delay will merit commutation. Abdul Khair vs State 44 DLR (AD) 225. Section 374—Commutation of sentence—In the instant case there is an immediate voluntary confession. The accused could have taken a plea of innocence but being repentant he made rather an open breast of everything and may be asking for mercy of God. This aspect of his character needs be kept in view and then the delay in hearing this reference had not been done by him but he had suffered the agony all these 6 years. Abdur Rahman Syed vs State 44 DLR 556. Section 374—A death reference made by the Court of Session may be disposed of even if the condemned accused is absconding. State vs Abdul Khaleque 46 DLR 353. Section 374—Commutation of death sentence—In consideration of the evidence that the appellant is a young man of 35 and initially he had no premeditation to murder, ends of justice would be met if he is sentenced to imprisonment for life. Accordingly, the sentence of death is commuted to imprisonment for life. Mojibur Rahman Gazi vs State 46 DLR 423. Section 374—Since the words “as if the sentences were passed by him” appearing in paragraph 3 of the Proclamation relate to execution of sentence of death, they need be given an interpretation favourable to the condemned- prisoners. Pursuant to such interpretation the Sessions Judge is under an obligation to follow the provision of section 374 CrPC and make a reference to the High Court Division for execution of the sentence passed by the Martial Law Court before issuing warrant therefor. Abdul Baset vs Bangladesh 47 DLR 203. Section 374—There is no bar to hear the death reference against an accused absconding from the inception of the case. State vs Balai Chandra Sarker 47 DLR 467. Section 374-The extenuating circumstances like lack of premediation, sudden quarrel and in the heat of passion, he inflicted the injuries which nevertheless falls within the purview of section 302 of the Penal Code. In our view accused Abdul Aziz Mina if be sentenced to imprisonment for life ends of justice would be met. In such view of the matter we alter the death penalty to that of imprisonment for life. Abdul Aziz Mina vs State 48 DLR 382. Section 374—The frenzied form of extreme love drove the accused to commit the crime. His body and soul should not be exterminated. We reduce the sentence of death penalty to that of imprisonment for life. State vs Abul Kalam Azad 48 DLR 103 Section 374-The murder was not committed by a vicious macho male Before causing death of his wife the appellant suffered for some time from a bitter sense of being wronged by his wayward wife In this case ends of justice will sufficiently be met if the sentence of death is commuted to one of life imprisonment. Zahiruddin vs State 47 DLR (AD) 92. Section 374—The sentence of death being too harsh for a young man and in the facts of the case is reduced to imprisonment for life. State vs Md Shamim alias Shamim Sikder 53 DLR 439. Section 374-Though leave was obtained on 12-7-93, yet the office of the Attorney-General did not take any step to get the appeal heard and it remained pending for more than eight years. Under the circumstances the quantum of punishment must be minus that eight years. State vs Abdul Barek 54 DLR (AD) 28. Section 374-When everything has been proved beyond all reasonable doubt mere long delay in the disposal of the case cannot by itself be a ground to commute the sentence. Giasuddin vs State 54 DLR (AD) 146. Section 374-Merely because certain years have passed in reaching finality to the judgment of the Court of Additional Sessions Judge the same cannot be the ground for commuting the sentence of death where death was caused for no reason. Abdul Bashir alias Bashu vs State 56 DLR (AD) 207. Section 342- Examination of accused Purpose of the examination of an accused under section 342 Cr. P.C is to give him an opportunity to explain his position in relation to the evidence brought against him on record. This is mandatory provision of law. Improper examination causes prejuduce to the accused. Touhid and others Vs. The State 12 MLR (2007) (HC) 158. Section 342—Appellant’s attention having been not drawn to the confessional statement, the confessional statement cannot be used against him. While examining this appellant under section 342 of the Code the trial Court has also not drawn the attention of appellant to the confessional statement made by him. In such circumstances also the confessional statement cannot be used against the appellant. The trial court also should not state anything regarding any incriminating evidence against the appellant under section 342 CrPC. Angur vs State 41 DLR 66. S. 342-Necessity of examining the accused of the close at the prosecution case. This section is based on the principle involved in the maxim audi alteran parten i.e. no one should be condemned unheard. It enjoins a duty upon the Court to bring to the notice of the accused all pieces of incriminating evidence and circumstances appearing the case against so as enable him to offer his explanation in respect of those incriminating materials. It is a very valuable right law has given to the accused and as such it is necessary to ensure that right. The examination of the accused by the Court in a causal manner is never contemplated by law as it prejudices the accused and deprives him of a valuable legal right. Alauddin Vs. The State 2 ALR (2013)-HCD-457. S. 342- Examination of the Accused of his confessional statement: The purpose of examining the accused is to enable him to explain any circumstances appearing in the evidence against him. Confessional statement of an accused is evidence against that accused, accuser's attention having not drawn to the confessional statement. So, it must be out of consideration...(Para-52). Md. Ishaque Vs. The State, 1 Counsel (2013)-HCD-83. S. 342 and the Children Act, 1974: The confessional statement as well as the statement recorded under section 342 of the Code of Criminal Procedure, we are of the view that the condemned-prisoner was not a minor at the time of commission of the offence. Therefore, he was not entitled to avail of the provisions of the Children Act, 1974 so far as those relate to youthful offenders...(Para-15). Nalu Vs. State, 1 CLR (2013)-AD-215. S. 342–Held; On perusal of the Form of examination of the accused person under section 342 of the Code of Criminal Procedure, it appears that the incriminating portion of the evidences were not brought to the notice of the convict while examining him but it is the mandatory provisions of law. The section 342 of the Code of Criminal Procedure cast a duty on the Court to bring the incriminating portion of the evidence to the notice of the convict appellant and non-compliance with the aforesaid procedure prejudiced the accused persons. Md. Mostafa Jaman Vs. State, 21 BLT (2013)-HCD-476. S. 342-object of: This section imposes upon the Trial Court a duty to properly examine the accused hy bringing all the incriminating evidence and circumstances appearing against him at the trial so as to give him the opportunity to explain the same Examination of the accused in a casual manner is perfunctory and the same is deprecated as it is prejudicial to the accused. Jharna Begum Vs. The State, 2 AL (2013)-1/CD-43. S. 342-The defence case is that the accused were in no way involved in the commission of murder as alleged by the prosecution and that there was no occurrence in the manner as alleged in the FIR .....(8) Nalu Vs. The State, 10 ADC (2013)-Page 687. S. 342-Reference to the Registrar of the Supreme Court of Bangladesh under section 374 of the Code of Criminal Procedure for confirmation of death sentence .....(8) The State Vs. Romana Begum alias Noma, 10 ADC (2013)- Page 692 S. 342-Whether a slip short examination is permissible It appears that while examining the appellant under Section 342 of the Code of Criminal Procedure the Court below did not properly disclosed the incriminating evidence against the appellants who are present in dock and faced the trial. Section 342 of the Code of Criminal Procedure is based on the principle involved in the "Maxim audi alteram partem that is no one should be, condemned unheard" It is utmost duty of the Court to give an opportunity to an accused to defence himself themselves. The real object of section 342 of the Code of Criminal Procedure is inviting the attention of the accused person to the points in the evidence which bare against them for which they may be convicted, so, he is given a chance to offer his explanation as to those. Jharna Begum & Ors Vs. The Stute, 21 BLT (2013)-RCD-20. S. 342-Trial court has not at all followed the provision of law and convicted the appellants without application of its judicial mind. It is an irregularity on the part lowes of the trial court, at the same time it cannot be ignored that this irregularity has prejudiced the appellants. Failure on the part of the learned Sessions Judge is not a mere irregularity; is a grave irregularity which has occasioned failure of justice. Habibur Rahman Vs. State, 18 BLC (2013)-AD-218. S. 342-The defence case is that the accused were in no way involved in the commission of murder as alleged by the prosecution and that there was no occurrence in the manner as alleged in the FIR.....(8) Nalu Vs. The State, 10 ADC (2013)-Page-82. S. 342-Section 342 requires the trial Cour Count to examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him. The substance of this examination is that the principles of natural Justice should not be violated before convicting an accused of a charge. Habibur Rahman & Habu & Ors. V. The State, 33 BLD (2013)-AD-120. S. 342-The examination of accused under section 342, CrPC in a slipshod manner without drawing the attention of the appellants to incriminating materials on record certainly prejudiced them. True, every error or omission in compline with the requirements of section 342 does not necessarily vitiate the trial, o errors are curable, The question whether the trial of the accused has been vitiates depends in each case upon the degree of error and whether prejudice has been or is likely to have been caused to the accused. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-121. S. 342-Failure to comply with section 342, CrPC amounts to a serious irregularity vitiating the trial if that is shown to have prejudicied the accused. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-122 S. 342-Examination of the accused under sec. 342 read with see. 364 Mandatory procedure: The accused Abdul Mazid was prejudiced in his defence inasmuch as he was not examined under section 342 in terms of the provisions laid down in Section 364 of the CPC, the incriminating pieces of evidence were brought to his notice, but those were not spelt out with reference to the evidence of the prosecution witnesses concerned. Abdul Mazid and ors Vs. State (Criminal), I Counsel (2013)-HCD-119. Section 342 After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction, if such omission has prejudiced the accused in their defence. [73 DLR 18] Minority View Per Mr. Justice Syed Mahmud Hossain, CJ: Burden of proof in wife killing case: What is more surprising to note here is that the appellant has not provided any reasonable explanation as to the cause of the death of his wife although in wife killing case, the condemned-appellant is under the obligation to do so. He has given all contradictory suggestions to the witnesses imputing allegations that the victim was a lady of lose character having illicit connection with others. In a misogynistic society, character assassination of women is a regular feature. In the case in hand even after death victim’s soul will not rest in peace because her two sons will know that their mother was a lady of questionable character. The condemned-appellant has failed to discharge his obligation by not explaining the cause of death of his wife in his house. ...(Paras 22 and 23) Sections 24 and 27 of the Evidence Act, 1872: It is of course true that the extra judicial confession made by the appellant before the witnesses in presence of the police is not admissible. But the fact remains that the chen/dao was recovered by the police from ceiling of the shop of the appellant at his instance in presence of the witnesses. Such recovery is admissible under section 27 of the Evidence Act. ...(Para 25) Section 342 of Code of Criminal Procedure, 1898: When a literate accused person re-calling witnesses cross-examine them, he is not at all prejudiced by minor defects in recording his statement under section 342 of the Code of Criminal Procedure: Having gone through statement recorded under section 342 of the Code of Criminal Procedure, I find that the statement was not recorded specifying the evidence adduced by individual witnesses but it cannot be said that the appellant was prejudiced in any way by such minor omission because he is a literate person and at his instance P.Ws.5, 6 and 7 were recalled. After recalling the aforesaid witnesses they were again cross[1]examined none other than by the appellant himself. Therefore, I am of the view that the condemned-appellant being a literate person and the witnesses having been examined in his presence, he was not at all prejudiced by such a minor defect in recording his statement under section 342 of the Code of Criminal Procedure. ...(Para 32) Majority Decision Per Mr. Justice Muhammad Imman Ali, J Honorable Author Judge of the Majority Decision: Section 342 of Code of Criminal Procedure, 1898: We also find some merit in the submission of the learned Advocate appearing on behalf of the appellant that the examination of the appellant done by the trial court under section 342 of the Code of Criminal Procedure was not conducted properly as the incriminating evidence in the depositions of the prosecution witnesses were not placed before the appellant in accordance with law. Hence, we are of the opinion that the examination of the appellant under section 342 of the Code was not lawfully done by the trial Court. So, the trial conducted by the court below is liable to be vitiated. ...(Para 53) Section 24 of the Evidence Act, 1872: The learned trial Judge appears to have taken into consideration the alleged admission by the appellant in presence of P.Ws 2,3,4 and 5 but failed to appreciate that if there was such an admission, it was made when the appellant was accompanied by the police and hence inadmissible under section 24 of the Evidence Act. The conviction and sentence were thus not based on legal evidence. ...(Para 63) Section 106 of the Evidence Act, 1872: With regard to the victim’s death while in the custody of her husband, the evidence on record shows that the appellant used to stay at his shop. There was no evidence that on that night he was sleeping in his own house. Hence, there is sufficient explanation from the appellant that he was not present in the house when his wife was attacked, and provision of section 106 of the Evidence Act are not applicable in the facts of the instant case. ...(Para 64) 16 SCOB [2022] AD 22 Section 342 of the Code of Criminal Procedure, 1898 Husband is duty bound to explain his wife’s death when his wife dies in his custody and he can explain it in his 342 statement: From the testimonies of the PWs. 1, 8 and 9 it was proved beyond all reasonable doubt that the instant appellant left the PW.1’s house with his wife Nasima Begum Aka Bahana along with their two sons before the alleged killing of her. This event eventually proved that Nasima alias Bahana before her death was in undeniably in the custody of her husband, the instant appellant. On 01-05-2006, it was reported that she was missing. On 06-05-2006, her corpse was recovered from the septic tank of her husband. The appellant in his confessional statement admitted aforesaid recovery. He not only knows the recovery of corpse, rather, knows about the killing, even though, he falsely searched for Nasima with other inmates of the house only to show publicly that Nasima was really missing which was not fact. The appellant’s such a pretext undoubtedly proved that he was fully aware about the murder. …the instant appellant as the husband is solely responsible and duty bound to explain as to how and when his wife, Nasima Begum alias Bahana was died. He was miserable failed to explain, even if, he was examined under section 342 of the Code of Criminal Procedure to that effect. ...(Paras 19 and 20) 16 SCOB [2022] AD 40 In 42 DLR (AD) 31 wherein our Appellate Division has observed as underneath: A statement of the accused under section 342 CrPC is meant for giving him and also to explain the circumstances appearing against him in the evidence adduced by the prosecution. This is entirely for the benefit of the accused and the accused only. This statement cannot be used by the court against him, nor is the prosecution permitted to use it to fill up any gap left in the prosecution evidence. A statement under section 342 CrPC is not evidence within the meaning of section 3 of the Evidence Act." The State Vs. Md. Hamidul 18 SCOB [2023] HCD 224 When injured in police custody, burden is upon them: Section 342 of the Code of Criminal Procedure: From the evidence of P.W.4, 7, 8, 9, 12, 13, 5, 6 it appears the informant Kader had been taken as unhurt into the room of the accused Helaluddin in khilgaon thana whereon the accused had been injured. Since the alleged occurrence took place in police custody, it is duty of officer in charge to explain how an unhurt man was injured in his room. The accused was examined under section 342 of the Code of Criminal Procedure giving him an opportunity to explain the evidence and circumstances appearing against him. During the examination under section 342 of the Code of Criminal Procedure the accused said that he will give a written statement. But on perusal of record no written statement has been found. Both court below did not utter that the accused gave a written statement. Since on declaration by the accused no written documents has been produced by the accused, no evidence has been adduced to defense himself which leads the statement made by prosecution witnesses that under custody of accused officer in charge of khilgaon, the informant had been inflected chapati blow by the accused was remained unchallenged. (Para 53) Basic pillars of Criminal Case: It is pertinent to note that in a Criminal case, time, place and manner of occurrence are the 3(three) basic pillars upon which the foundation of the case stand on and the same are required to be strictly proved beyond reasonable doubt by the prosecution in a bid to ensure punishment for an offender charged with an offence. If in a given case any one of the above 3(three) pillars is found lacking or proved to be untrue then it is adversely react upon the entire prosecution case. (Para-55) Torture in police custody if goes unpunished, the criminals are encouraged and the society suffers: In recent years, torture in police custody is increasing. The crime in police custody is the worst kind of Crime in a civilized society. The court must keep in mind when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin became frustrated and lost their confidence towards law. The victim/informant is a young BCS qualified man. Moreover, the two cases had been filed against him, wherefrom he had been released as no evidence had been found during the investigation. Considering those aspects I am of the view that the cruelty and violence with which the accused caused injury the victim deserves to be treated with strict and heavy hand. (Para-56) [Md. Helal Uddin Vs. The State, 18 SCOB [2023] HCD 264] Section 342—There being nothing on record to show that the main aspects of the confessional statement of the accused was brought to his notice he was certainly prejudiced and, as such, the statement could not be used against him. Kabir vs State 45 DLR 755. Section 342—The accused appellant was asked questions during statement under section 342 CrPC with the preconceived notion that he was already found guilty under sections 395/397 of the Penal Code. This type of questions being against all norms of procedure of criminal jurisprudence are highly prejudicial to the accused. Abu Taleb vs State 41 DLR 239. Code of Criminal Procedure (V of 1898) Section 342 After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction, if such omission has prejudiced the accused in their defence. [73 DLR 18] Section 342—No question relating to bloodstained cloth or injury in the hand was put to the condemned-prisoner. This circumstance has no basis to base conviction. It is surprising that though some of the PWs alleged to have seen the said blood-stained shirt, no attempt was made even by the police to seize the same and also to examine the said blood by any chemical examiner. Further, in the examination under section 342 CrPC no question relating to such blood-stained cloth or injury in the hand was put to the condemned-prisoner. So, this circumstance has no basis and the same has not been established at all by any reliable evidence. State vs Badsha Mollah 41 DLR 11. Section 342—Provisions of section 342 having not been followed strictly, Exhibit 5, the confessional statement, was wrongly relied upon. Since the officer who conducted the test identification parade was not examined by the prosecution, the test identification report is not admissible in evidence. So far as accused appellant Amir Hossain is concerned since his confessional statement has not been mentioned in his examination under section 342 of the Code of Criminal Procedure he cannot be convicted relying upon his confessional statement. Since the prosecution can neither rely upon his confessional statement nor take advantage of the evidence of identifying witnesses there is no other legal evidence against accused Amir Hossajn to sustain his conviction under sections 395/397 of the Penal Code. Amir Hossain vs State 41 DLR 32. Section 342-Non spelling out of details of the confession to the appellant at the time of his examination under section 342 of the Code, he has not been prejudiced in any way. Khorshed (Md) vs State (Criminal), 73 DLR (AD) 83 Section 342—A statement of the accused under section 342 CrPC is meant for giving him an opportunity to explain the circumstances appearing against him in the evidence adduced by the prosecution—This is entirely for the benefit of the accused and the accused only—This statement cannot be used by the Court against him, nor is the prosecution permitted to use it to fill up any gap left in the prosecution evidence. Relied on (1923) ILR Lah 50. Shah Alam vs State 42 DLR (AD) 31. Section 342—One of important items for linking up the accused with the crime, namely the sandal, was not at all put to the accused as a circumstance appearing in the case against him while he was examined under section 342 CrPC. Mizazul Islam vs State 41 DLR (AD) 157. Section 342—The trial Court failed to take into consideration along with evidence on record the accused’s written reply giving vivid description of the highhandedness of BDR personnel in support of their defence that they were implicated in the case at the instance of their rival businessmen. Subodh Ranjan vs State 45 DLR 521. Section 342—Presence at the place and time of murder—reasonable doubt as to guilt—In his examination under section 342 CrPC, though all the evidence against him were brought to his notice to prove the charge of murder, accused Kashem did not explain away his presence with co-accused Abbas at the place and time of the murder to raise doubt in the mind of the Court about his guilt, not to speak of raising any reasonable doubt. Abul Kashem vs State 42 DLR 378. Section 342—Allegation of torture made in statement recorded under section 342 CrPC—No reliance can be placed on the belated allegation of torture by police in obtaining confession in the absence of materials on record to substantiate the same. Hazrat Ali & Abdur Rahman vs State 42 DLR 177. Section 342—Conviction of co-accused who has not confessed—Circumstances show the accused Shahjahan Manik had intimacy with accused Rina and this put them on visiting terms and the visits had strengthened his intimacy with Rina. Their guilty conscience is also evident from the false plea in their statements made under section 342 CrPC that they did not know each other. Shahjahan Manik vs State 42 DLR 465. Section 342—The provision of this section is meant for giving the accused an opportunity to explain the circumstances appearing against him. There is no merit in the contention that the appellate Court acted illegally in relying on his statement under section 342. Abdul Karim vs Shamsul Alam 45 DLR 578. Section 342—Omission to examine the accused under this section is not curable under section 537. After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction if such omission has prejudiced the accused in their defence. The conviction is set aside and it is directed that the accused be examined under section 342 CrPC by the trial Court and thereupon the case be disposed of according to law. A Gafur vs Jogesh Chandra Roy 43 DLR (AD) 62. Section 342—Non-mentioning of memo of TI parade, the basis of conviction of the accused appellant in his examination under section 342 CrPC, has definitely prejudiced him inasmuch as, in absence of the same he could not explain the matter showing his innocence. Mizanur Rahman vs State 49 DLR 83. Section 342—The only evidence of involvement of the accused appellants comes from their confessional statements, but during their examinaion under section 342 CrPC the confessional statements were not put up before them and they were denied the opportunities of offering any explanation on the same. This has prejudiced the appellants in their defence. Abul Kashem vs State 49 DLR 573. Section 342—Nothing was put before the accused about the alleged confession while examining them under section 342 CrPC and for this non-compliance of the mandatory provision, the accused persons have been seriously prejudiced. Abul Hossain vs State 46 DLR 77. Sections 342 & 537—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abul Khayer vs State 46 DLR 212. Section 342—Non-mentioning of memo of TI parade, the basis of conviction of the accused appellant in his examination under section 342 CrPC, has definitely prejudiced him inasmuch as, in absence of the same he could not explain the matter showing his innocence thereto. Mizanur Rahman vs State 49 DLR 83. Section 342—The only evidence of involvement of the accused appellants comes from their confessional statements, but during their examination under section 342 CrPC the confessional statements were not put up before them and they were denied the opportunities of offering any explanation on the same. This has prejudiced the appellants in their defence. Abul Kashem vs State 49 DLR 573. Section 342—The trial Court is under an obligation to properly comply with the requirement of law so as to avoid any possible prejudice to the accused on this Count. Nurul Alam Chowdhury vs State 125. Section 342—The provision of section 342 CrPC has been codified providing opportunity to the accused to make out his case of innocence. As he was denied the right to present his case for no fault of his own, the accused was seriously prejudiced in his trial. The order of his conviction is quashed. Shahidul vs State 51 DLR 222. Section 342—Incriminating circumstances appearing in the evidence of PW 1 complainant having not been pointed out to the accused he is likely to be gravely prejudiced in his defence. Nibash Chandra vs Dipali Rani 52 DLR 87. Section 342—This provision of law is intended for the benefit of the accused. The trial Court is under an obligation to properly comply with the requirement of law so as to avoid any possible prejudice to the accused on this count. Nurul Islam Chowdhury vs State 52 DLR 397. Section 342—The accused-appellant took some alibi in retraction petition but when he did not adduce any evidence in support of his alibi he did not discharge his burden to prove the alibi. 43 DLR (AD) 63, Nannu Gazi vs Awlad Hossain ref. Shahjahan vs State 53 DLR 268. Section 342—Incriminating evidence or circumstances sought to be proved by the prosecution must be put to the accused during examination under section 342 CrPC otherwise it would cause miscarriage of justice. State vs Monu Miah 54 DLR (AD) 60. Section 342—Since the petitioner has admitted his guilt no examination under section 342 of the Code of Criminal Procedure is required while convicting and sentencing the accused on the basis of the same. Jashimuddin vs State 56 DLR (AD) 223. Section 342—The dying declaration, if be treated as true, cannot form the basis of conviction, as it was not referred to the accused while examined under section 342 of the Code. Noor Hossain vs State 55 DLR 557. Section 342—The examination of the accused under section 342 of the Code is not a mere formality it is the fundamental principle of law that the attention of the accused must be drawn to the evidence on record in a precise manner—Any dying declaration and confessional statement of any accused person must be stated to the accused to enable them to resist the case of prosecution. State vs Kabel Molla 55 DLR 108. Section 342—Trial will not be vitiated if there is no question of prejudice due to any flaw in the examination under section 342 CrPC. Zakir Hossain vs State 55 DLR 137. Section 342—Non-consideration of written statement and documents and papers in support of written statement by trial Judge and his absolute silence on those caused a prejudice of a grave nature to the convict. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513. Section 342—Section 342 of the Code being a mandatory provision of procedural law the departure from the principles of the section causes grave prejudice to the accused. In this case the accused having not been given any opportunity to explain the circumstances, the order of their conviction is liable to be set aside. Mohiruddin Mondal vs State 57 DLR 779. Section 342—৩৪২ ধারার বিধান হচ্ছে সাক্ষীদের আসামীর বিরুদ্ধে যে তথ্য প্রকাশ পায় তা বিচারক দ্বারা আসামীর দৃষ্টিগোচরে এনে তাকে তা ব্যাখ্যা করার সুযোগ দেয়ার জন্য তাকে প্রয়োজনীয় প্রশ্ন করা । আসামী দোষী কি নির্দোষী তা জিজ্ঞাসা করা উক্ত বিধানের উদ্দেশে নয় । Abdul Razzak Talukder vs State, represented by the Deputy Commissioner Barisal 51 DLR 83. Section 342—যেহেতু আসামী পক্ষে বিজ্ঞ এডভোকেট ৩৪২ ধারায় আসামীকে একটি পূর্ণভাবে প্রশ্ন করা সম্পর্কে কোন প্রশ্ন উত্থাপন করেননি সে জন্নে আমরা ৩৪২ ধারায় আসামীকে প্রশ্ন করা ত্রুটিপূর্ণও বলে সে সম্পর্কে কোন সিদ্ধান্ত দেয়ার প্রয়োজনীয়তা দেখি না । তা ছাড়া আসামী ঘটনা সম্পূর্ণ অস্বীকার করে ছাফাই সাক্ষী দেয়ায় তদ্রুপ ত্রুটিপূর্ণ প্রশ্নের দ্বারা আসামী বিচারে ক্ষতিগ্রস্থ হয়েছে বলেও আমরা মনে করি না । Abdul Razzak Talukder vs State, represented by the Deputy Commissioner, Barisal 51 DLR 83. 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 proceeding under Section 145 CrPC. Abdul Majid Mondal vs State 51 DLR 287. Section 145(1)—Grounds of satisfaction not stated in the preliminary order—Additional Sessions Judge could inquire whether there were materials on record for such satisfaction and come to a conclusion that the same was not based on materials. Moslem uddin Dhali vs Helaluddin Dhali 41 DLR 120. Section 145(1)(5)—Subjective satisfaction in passing order under sub-Section (1) but not when moved under sub-Section 5. When a Magistrate passes a preliminary order under sub-Section (1), he has to exercise a subjective satisfaction with regard to the apprehension of breach of peace. But when he decides to cancel or not to cancel the preliminary order on being moved under sub-Section (5), his satisfaction is no longer subjective. Decision under sub-Section (5) is subject to scrutiny on a wider ground than in an order under sub-Section (1). This subsequent decision under sub-Section (5) is subject to scrutiny by the revisional Court on a wider ground than the Magistrate’s order passed under sub-Section (1). Order under sub-Section (5) based on objective satisfaction—open to wider challenge on revision. But an order passed under sub-Section (5) is based on objective satisfaction and it is open to wider challenge before the revisional Court. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120. Section 145(4) & 561A—When an order of attachment and appointment of receiver was legally made by the Magistrate to prevent serious apprehension of immediate breach of peace, such order is to be restored by setting aside the order of Sessions Judge who illegally set aside the order of the Magistrate in exercise of inherent jurisdiction of High Court Division for securing ends of justice. Alauddin vs State 58 DLR 364. Section 145(4)—Power in Section (4) of Section 145 CrPC is an extraordinary power to be exercised in a case of emergency and should not be resorted to as a matter of routine—No apprehension of breach of peace and parties being in joint possession, the order is to be vacated. Gura Miah vs Fazar Ali 42 DLR 70. Section 145(4)—Before passing any order under sub-Section (4) the Court is required to enquire as regards the fact of actual possession of evidence to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex fade the order must be held to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex facie the order must be held to be illegal as in the instant case. Abdul Quddus vs State and Md Mobarak Hussain Ratan 47 DLR 506. Section 145(5)—Magistrate came to the conclusion that there is apprehension of breach of peace on the basis of a certain material—In revisional jurisdiction a different view may be taken. The Chief Metropolitan Magistrate by his order dated 12-4-87 came to the conclusion that the posting of Ansars is a further material for coming to a conclusion that there is apprehension of breach of peace. Sitting in the revisional jurisdiction from an order under sub-Section (5) the learned Additional Sessions Judge was perfectly entitled to take a different view. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120. Section 145- Breach of peace over possession The Magistrate must bear in mind that the jurisdiction under this provision is emergency in nature and therefore, he need not wait for a police report but he must act with caution in drawing up such proceeding. Acceptance of the police report or any suggestions given by such report may sometime negate the purpose for which the power, is given upon the Magistrate under Section 145. The Magistrate should not act as a routine work relying upon the said report. When the parties submitted to the jurisdiction of the court, placed their respective case, the court should not pass such exceptional order dispossessing a party in possession of the disputed property. The Additional Sessions Judge who heard the revision petition has overlooked this aspect of the matter and maintained the order of appointment of receiver. The High Court Division has rightly interfered with the said orders. Omar Faruque Majumder =VS= Borhanuddin (Bacchu). [9 LM (AD) 378] Section 146 Section 146—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 trial 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 147 Section 147—Removal of obstruction—If the Magistrate, after recording evidence, finds merit in the case, he will pass orders prohibiting interference with the right of using the disputed land as the 1st Party’s pathway. In passing such order the Magistrate has sufficient jurisdiction to pass ancillary orders so as to make his order of prohibition effective and, if necessary, to pass orders for removal of any obstruction in the pathway. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127. Section 154 There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. ......(40) [73 DLR 18] Editors’ Note Two appellants were convicted for commission of offence punishable under Sections 302/34 of the Penal Code and they were sentenced to death by the trial Court. The High Court Division confirmed the conviction and sentence awarded by the trial Court. There was a dying declaration made by the victim and recorded by the I/O of the case. The Appellate Division found that both the dying declaration and its contents have been proved by 4 PWs and the testimonies of PW-1 and PW-2 to be corroborative to the dying declaration. The Appellate Division held that the learned Courts below upon proper consideration of the testimonies of the witnesses and dying declaration of the victim found the appellants guilty of the charge levelled against them. However, considering that the appellants are in death cell for about 14 years, it commuted the sentence of the appellants from death to one of imprisonment for life with fine. Evidence Act 1872, Section 32(1) read with Section 162(2) of Code of Criminal Procedure, 1898 Whether a dying declaration recorded by an Investigating Officer is admissible in evidence: In view of the testimonies of the PW-16 S.I. Moazzem Hossain and P.Ws. 4, 5 and 18 we do not find any reason to disbelieve the dying declaration of the victim (exhibit-4). It is true that when a police-officer in course of investigation examines any person supposed to be acquainted with the facts and circumstances of the case, the substance of that examination falls under the category of statement recorded under Section 161 of the Code of Criminal Procedure and that statement is not admissible in evidence. But in view of the Section 162 (2) of the Code of Criminal Procedure a dying declaration recorded by an Investigating Officer does not lose its special evidentiary value and can be sole basis for awarding conviction. Unlike recording of a confessional statement law does not require that a dying declaration shall be recorded by certain prescribed persons for the very reason that a dying man may not have sufficient time in his hand for his declaration to be recorded by a prescribed person. ...(Para 14) 16 SCOB [2022] AD 17 Section 154 In facts, the story of rape itself gives rise to a grave suspicion implicating the accused; as such it will be fully within the domain of the appellate court to acquit the accused. The reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix. [74 DLR (AD) 28] Section 154—FIR—delay——The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story. Abdul Latif vs State 44 DLR 492. Section 154—FIR does not contain detailed facts of the prosecution case. Its main purpose is to give information of a cognizable offence to the public and set the law in action. Ataur Rahman vs State 43 DLR 87. Section 154—FIR—Effect of departure from FIR story—where the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded. Gopal Rajgor vs State 42 DLR 446. Section 154-A FIR may be lodged by any person for, it is meant just to set the machinery of law in action. Shah Alam vs State 42 DLR (AD) 31. Section 154—Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. Nazrul Islam vs State 45 DLR 142. Section 154—FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. State vs Abdus Sattar 43 DLR (AD) 44. Section 154-The first information report is not a substantive piece of evidence and can be used only for the purpose of corroborating or contradicting the matter thereof, but its value lies in being the earliest version of the prosecution story. Seraj Miah vs State 49 DLR 192. Sections 154-Where there is no FIR or where the FIR cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it. (NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Section 154-A massage given to the local police station even if cryptic, if it discloses a cognizable offence may constitute an FIR within the meaning of Section 154. A telephonic message to the police station which has been recorded by police officer and started investigation basing upon the message if it discloses a cognizable offence, the police can treat it as an FIR. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Sections 154 and 173-The conduct of Commission raises serious question as to its neutrality, fairness and sincerity in dealing with the Basic Bank loan scam. Salim (Md) vs State, 70 DLR 159 Sections 154 and 498-Neither the branch nor the HOCC committee recommended for sanction of the loan to the borrower company; despite the Board of Directors sanctioned the loan and ultimately a huge amount of loan money that is public money was misappropriated by the borrower in connivance with the Board members and other officials of the Bank. But it surprising to note that none of the members including its Chairman and other members of the HOCC committee were made accused in the FIR though prima facie their involvement has been disclosed in the FIR. Salim (Md) vs State, 70 DLR 159 S. 154-Where there are glaring contradiction between contents of F.I.R. with that police report then contents of F.I.R. are false and concocted. Kazi Khairuzzaman & Ors. Vs. The State, 33 BLD (2013)-HCD-60. S. 154-F.I.R-Every information relating to the commission of a cognizable offence given to the Officer-in-charge of a Police Station or any other authorised police officer, and which is first in point of time, shall be the first information report (F.I.R.) of the case. Information lodged after the commencement of investigation cannot be the F.I.R. but is a statement under Section 161 of the Code of Criminal Procedure. Alauddin Vs. The State (Criminal), 2 ALR (2013)-HCD-457 Delay in Lodging F.I.R. The F.I.R. was lodged at delay of 13 days and no explanation was given thereto. The appearance of the informant victim at 6.30 at the place of occurrence to get back her goat also appears as a myth. In the month of February the sun sets prior to 6 P.M. and darkness comes up at 6.30 P.M. Posting of goat till 6.30 P.M. in the filed 1000 yards away from the residence does not consistent with the ordinary course of village life. The circumstance of the case together with inordinate delay casts reasonable doubt to the prosecution case and in view of the fact, the sole evidence of the prosecutrix cannot be relied on for conviction of the convict appellant as well as the convict-accused..(40) Md. Moznu Vs. The State, 3 TLR (2013)-Page 472. S. 154 read with Ain Siringkhala Bignakari Aparad Daman Ain, 2002: Section 4- In the instant case there is no First Information Report in the eye of law as per Section 154 of the Code of Criminal Procedure. Because a General Diary was initiated and money was recovered before G.D. but the General Diary has not treated as First Information Report (FIR). There is no scope of an FIR subsequently after recording the G.D. relied on 38 DLR (AD) 311 and 6 MLR (AD) 279. Alauddin & Anr. Vs. The State (Criminal), 21 BLT (2013)-HCD-191. Section 154––The first information report is not a substantive piece of evidence but it can be used to corroborate the informant or to contradict him. It cannot be used to contradict the evidence of any witness other than the informant. The Court is, of course, entitled to note the conflict between the first recorded version of the prosecution case and the case made out in the course of the trial. State vs Tajul Islam 48 DLR 305. Section 154-The First Information cannot be treated as the first and the last word of a prosecution case—Weight is to be give to the legal evidence adduced by a witness before the Court at the time of trial. Al Amin vs State 51 DLR 154. Section 154-When the First Information Report is lodged within minimum possible time, such First Information Report story should not be disbelieved only because of any somersault on the part of the informant. We have already found that for saving his full brother, the informant suppressed the truth at the time of deposing in the Court and, as such, we are of the view that in this case before us conviction may be given on the basis of the statement made in the First Information Report and on the basis of the evidence of the witnesses who corroborated the First Information Report story. Khorshed vs State 51 DLR 317. Section 154—The filing of the first information report by the victim’s father that she died after taking poison was no bar to file a second first information report if subsequently it transpires that the death was homicidal in nature. Abdul Khaleque vs State 53 DLR (AD) 102. Section 154—Publication of a report in a news-paper about commission of a cognizable offence against a particular person is not “information” within the meaning of Section 154. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88. Section 154—The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed & others 54 DLR 333. Section 154—There could not be any second first information report and there could not be any investigation on the strength of such a first information report. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513. Section 154—The entire period of trial is to be calculated on the basis of the concerned Judge’s working days. On 5 occasions the concerned judge was on leave which are to be excluded from the period of trial. Such period excluded, this case is not hit by Section 10 of the said Act., This aspect has not also been raised during the trial before the Judge to count his working days as contemplated in Section 10 of Act. State vs Naimul Islam 60 DLR 481. 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 proceeding under Section 145 CrPC. Abdul Majid Mondal vs State 51 DLR 287. Section 145(1)—Grounds of satisfaction not stated in the preliminary order—Additional Sessions Judge could inquire whether there were materials on record for such satisfaction and come to a conclusion that the same was not based on materials. Moslem uddin Dhali vs Helaluddin Dhali 41 DLR 120. Section 145(1)(5)—Subjective satisfaction in passing order under sub-Section (1) but not when moved under sub-Section 5. When a Magistrate passes a preliminary order under sub-Section (1), he has to exercise a subjective satisfaction with regard to the apprehension of breach of peace. But when he decides to cancel or not to cancel the preliminary order on being moved under sub-Section (5), his satisfaction is no longer subjective. Decision under sub-Section (5) is subject to scrutiny on a wider ground than in an order under sub-Section (1). This subsequent decision under sub-Section (5) is subject to scrutiny by the revisional Court on a wider ground than the Magistrate’s order passed under sub-Section (1). Order under sub-Section (5) based on objective satisfaction—open to wider challenge on revision. But an order passed under sub-Section (5) is based on objective satisfaction and it is open to wider challenge before the revisional Court. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120. Section 145(4) & 561A—When an order of attachment and appointment of receiver was legally made by the Magistrate to prevent serious apprehension of immediate breach of peace, such order is to be restored by setting aside the order of Sessions Judge who illegally set aside the order of the Magistrate in exercise of inherent jurisdiction of High Court Division for securing ends of justice. Alauddin vs State 58 DLR 364. Section 145(4)—Power in Section (4) of Section 145 CrPC is an extraordinary power to be exercised in a case of emergency and should not be resorted to as a matter of routine—No apprehension of breach of peace and parties being in joint possession, the order is to be vacated. Gura Miah vs Fazar Ali 42 DLR 70. Section 145(4)—Before passing any order under sub-Section (4) the Court is required to enquire as regards the fact of actual possession of evidence to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex fade the order must be held to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex facie the order must be held to be illegal as in the instant case. Abdul Quddus vs State and Md Mobarak Hussain Ratan 47 DLR 506. Section 145(5)—Magistrate came to the conclusion that there is apprehension of breach of peace on the basis of a certain material—In revisional jurisdiction a different view may be taken. The Chief Metropolitan Magistrate by his order dated 12-4-87 came to the conclusion that the posting of Ansars is a further material for coming to a conclusion that there is apprehension of breach of peace. Sitting in the revisional jurisdiction from an order under sub-Section (5) the learned Additional Sessions Judge was perfectly entitled to take a different view. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120. Section 145- Breach of peace over possession The Magistrate must bear in mind that the jurisdiction under this provision is emergency in nature and therefore, he need not wait for a police report but he must act with caution in drawing up such proceeding. Acceptance of the police report or any suggestions given by such report may sometime negate the purpose for which the power, is given upon the Magistrate under Section 145. The Magistrate should not act as a routine work relying upon the said report. When the parties submitted to the jurisdiction of the court, placed their respective case, the court should not pass such exceptional order dispossessing a party in possession of the disputed property. The Additional Sessions Judge who heard the revision petition has overlooked this aspect of the matter and maintained the order of appointment of receiver. The High Court Division has rightly interfered with the said orders. Omar Faruque Majumder =VS= Borhanuddin (Bacchu). [9 LM (AD) 378] Section 146 Section 146—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 trial 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 147 Section 147—Removal of obstruction—If the Magistrate, after recording evidence, finds merit in the case, he will pass orders prohibiting interference with the right of using the disputed land as the 1st Party’s pathway. In passing such order the Magistrate has sufficient jurisdiction to pass ancillary orders so as to make his order of prohibition effective and, if necessary, to pass orders for removal of any obstruction in the pathway. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127. Section 154 There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. ......(40) [73 DLR 18] Editors’ Note Two appellants were convicted for commission of offence punishable under Sections 302/34 of the Penal Code and they were sentenced to death by the trial Court. The High Court Division confirmed the conviction and sentence awarded by the trial Court. There was a dying declaration made by the victim and recorded by the I/O of the case. The Appellate Division found that both the dying declaration and its contents have been proved by 4 PWs and the testimonies of PW-1 and PW-2 to be corroborative to the dying declaration. The Appellate Division held that the learned Courts below upon proper consideration of the testimonies of the witnesses and dying declaration of the victim found the appellants guilty of the charge levelled against them. However, considering that the appellants are in death cell for about 14 years, it commuted the sentence of the appellants from death to one of imprisonment for life with fine. Evidence Act 1872, Section 32(1) read with Section 162(2) of Code of Criminal Procedure, 1898 Whether a dying declaration recorded by an Investigating Officer is admissible in evidence: In view of the testimonies of the PW-16 S.I. Moazzem Hossain and P.Ws. 4, 5 and 18 we do not find any reason to disbelieve the dying declaration of the victim (exhibit-4). It is true that when a police-officer in course of investigation examines any person supposed to be acquainted with the facts and circumstances of the case, the substance of that examination falls under the category of statement recorded under Section 161 of the Code of Criminal Procedure and that statement is not admissible in evidence. But in view of the Section 162 (2) of the Code of Criminal Procedure a dying declaration recorded by an Investigating Officer does not lose its special evidentiary value and can be sole basis for awarding conviction. Unlike recording of a confessional statement law does not require that a dying declaration shall be recorded by certain prescribed persons for the very reason that a dying man may not have sufficient time in his hand for his declaration to be recorded by a prescribed person. ...(Para 14) 16 SCOB [2022] AD 17 Section 154 In facts, the story of rape itself gives rise to a grave suspicion implicating the accused; as such it will be fully within the domain of the appellate court to acquit the accused. The reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix. [74 DLR (AD) 28] Section 154—FIR—delay——The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story. Abdul Latif vs State 44 DLR 492. Section 154—FIR does not contain detailed facts of the prosecution case. Its main purpose is to give information of a cognizable offence to the public and set the law in action. Ataur Rahman vs State 43 DLR 87. Section 154—FIR—Effect of departure from FIR story—where the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded. Gopal Rajgor vs State 42 DLR 446. Section 154-A FIR may be lodged by any person for, it is meant just to set the machinery of law in action. Shah Alam vs State 42 DLR (AD) 31. Section 154—Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. Nazrul Islam vs State 45 DLR 142. Section 154—FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. State vs Abdus Sattar 43 DLR (AD) 44. Section 154-The first information report is not a substantive piece of evidence and can be used only for the purpose of corroborating or contradicting the matter thereof, but its value lies in being the earliest version of the prosecution story. Seraj Miah vs State 49 DLR 192. Sections 154-Where there is no FIR or where the FIR cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it. (NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Section 154-A massage given to the local police station even if cryptic, if it discloses a cognizable offence may constitute an FIR within the meaning of Section 154. A telephonic message to the police station which has been recorded by police officer and started investigation basing upon the message if it discloses a cognizable offence, the police can treat it as an FIR. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13 Sections 154 and 173-The conduct of Commission raises serious question as to its neutrality, fairness and sincerity in dealing with the Basic Bank loan scam. Salim (Md) vs State, 70 DLR 159 Sections 154 and 498-Neither the branch nor the HOCC committee recommended for sanction of the loan to the borrower company; despite the Board of Directors sanctioned the loan and ultimately a huge amount of loan money that is public money was misappropriated by the borrower in connivance with the Board members and other officials of the Bank. But it surprising to note that none of the members including its Chairman and other members of the HOCC committee were made accused in the FIR though prima facie their involvement has been disclosed in the FIR. Salim (Md) vs State, 70 DLR 159 S. 154-Where there are glaring contradiction between contents of F.I.R. with that police report then contents of F.I.R. are false and concocted. Kazi Khairuzzaman & Ors. Vs. The State, 33 BLD (2013)-HCD-60. S. 154-F.I.R-Every information relating to the commission of a cognizable offence given to the Officer-in-charge of a Police Station or any other authorised police officer, and which is first in point of time, shall be the first information report (F.I.R.) of the case. Information lodged after the commencement of investigation cannot be the F.I.R. but is a statement under Section 161 of the Code of Criminal Procedure. Alauddin Vs. The State (Criminal), 2 ALR (2013)-HCD-457 Delay in Lodging F.I.R. The F.I.R. was lodged at delay of 13 days and no explanation was given thereto. The appearance of the informant victim at 6.30 at the place of occurrence to get back her goat also appears as a myth. In the month of February the sun sets prior to 6 P.M. and darkness comes up at 6.30 P.M. Posting of goat till 6.30 P.M. in the filed 1000 yards away from the residence does not consistent with the ordinary course of village life. The circumstance of the case together with inordinate delay casts reasonable doubt to the prosecution case and in view of the fact, the sole evidence of the prosecutrix cannot be relied on for conviction of the convict appellant as well as the convict-accused..(40) Md. Moznu Vs. The State, 3 TLR (2013)-Page 472. S. 154 read with Ain Siringkhala Bignakari Aparad Daman Ain, 2002: Section 4- In the instant case there is no First Information Report in the eye of law as per Section 154 of the Code of Criminal Procedure. Because a General Diary was initiated and money was recovered before G.D. but the General Diary has not treated as First Information Report (FIR). There is no scope of an FIR subsequently after recording the G.D. relied on 38 DLR (AD) 311 and 6 MLR (AD) 279. Alauddin & Anr. Vs. The State (Criminal), 21 BLT (2013)-HCD-191. Section 154––The first information report is not a substantive piece of evidence but it can be used to corroborate the informant or to contradict him. It cannot be used to contradict the evidence of any witness other than the informant. The Court is, of course, entitled to note the conflict between the first recorded version of the prosecution case and the case made out in the course of the trial. State vs Tajul Islam 48 DLR 305. Section 154-The First Information cannot be treated as the first and the last word of a prosecution case—Weight is to be give to the legal evidence adduced by a witness before the Court at the time of trial. Al Amin vs State 51 DLR 154. Section 154-When the First Information Report is lodged within minimum possible time, such First Information Report story should not be disbelieved only because of any somersault on the part of the informant. We have already found that for saving his full brother, the informant suppressed the truth at the time of deposing in the Court and, as such, we are of the view that in this case before us conviction may be given on the basis of the statement made in the First Information Report and on the basis of the evidence of the witnesses who corroborated the First Information Report story. Khorshed vs State 51 DLR 317. Section 154—The filing of the first information report by the victim’s father that she died after taking poison was no bar to file a second first information report if subsequently it transpires that the death was homicidal in nature. Abdul Khaleque vs State 53 DLR (AD) 102. Section 154—Publication of a report in a news-paper about commission of a cognizable offence against a particular person is not “information” within the meaning of Section 154. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88. Section 154—The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed & others 54 DLR 333. Section 154—There could not be any second first information report and there could not be any investigation on the strength of such a first information report. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513. Section 154—The entire period of trial is to be calculated on the basis of the concerned Judge’s working days. On 5 occasions the concerned judge was on leave which are to be excluded from the period of trial. Such period excluded, this case is not hit by Section 10 of the said Act., This aspect has not also been raised during the trial before the Judge to count his working days as contemplated in Section 10 of Act. State vs Naimul Islam 60 DLR 481. Section 154-FIR—Delay—Mere delay in lodging a case is not a ground for disbelieving a prosecution case, for there are various circumstances in which lodging any case as to the commission of offence may be delayed. (Per SK Sinha J) Major BazIul Huda vs State 62 DLR (AD) 1. Section 154-Words ‘মামলা দায়ের’ means institution of a case by submission of a charge- sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under Section 154 of the Code of Criminal Procedure or a complaint (অভিযোগ) as envisaged under Rule 3 and 4 of the Rules. The irresistible conclusion is that no sanction will be required to file a complaint (অভিযোগ) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended Section 32, before institution of a case (মামলা দায়েরের ক্ষেত্রে) in the concerned Court. Anti- Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290. Sections 154 and 157—‘Information’— News-paper Report—The use of the word ‘information’ in Section 157 normally means the information received under Section 154 of the Code. In Section 157, besides using the word ‘information,’ the expression ‘or otherwise’ has also been used. This cannot empower a police officer to start investigation on the basis of a report published in a news-paper. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88. Sections 154 and 157—Receipt of information is not a condition precedent for investigation—The officer-in-charge of a police station can start investigation either on “information” or “otherwise”. Saifuzzaman vs State 56 DLR 324. Sections 154, 156 & 157—If an officer-in-charge of a police station does not investigate a case, some reasons must be recorded and with such reasons he should notify the informant that he would not investigate into the case. Yasmin Sultana vs Bangladesh 54 DLR 269. Sections 154, 156 & 157—An officer-in-charge of a police station is legally bound to reduce an information of cognizable offence into a first information report and to start investigation into the case. Yasmin Sultana vs Bangladesh 54 DLR 269. Sections 154 & 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the informant 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 treated as one under Section 161 CrPC. Shahjahan vs State 46 DLR 575. Sections 154 and 161—The information of commission of a cognisable offence earliest in point of time, on the basis of which law was already set in motion, is the first information report within the meaning of Section 154 of the Code and the first information report lodged later on during investigation is a statement of PW 1 under Section 161 of the Code and, as such, it is inadmissible. State vs Al Hasib Bin Jamal 59 DLR 653. Sections 154 & 161—The written information that was handed over by PW Ito the SI (PW 12) of the Sonargaon PS and Investigating Officer at 19-45 hours of 4th March, 1987 and on receipt whereof PW 12 started Sonargaon PS.Case No. 2 dated 4th March, 1987, is in the eye of law not a FIR but a statement in writing by PW 1, whoh heard from PW 2 about the incident, to the Investigating Officer, subsequent to commencement of the investigation and, as such, the same is a statement under Section 161 of the CrPC (38 DLR (AD) 311). Ansar (Md) Chan Mia vs State 53 DLR (AD) 115. Sections 154, 161 & 162—First Information Report is an accusation, an information relating to the commission of cognisable offence reported to the Police by any person with the object of putting the Police in motion in order to investigate. Nure Alam vs State 54 DLR 242. Sections 154 & 162—The document exhibited as FIR in the case should not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was a GD Entry thereon, but the same had not been produced. Akhtar Hossain vs State 44 DLR 83. Sections 154-173, 173(3B)- We are of the view that the investigation of crime is carried out dehors the mandate contained in the Code of Criminal Procedure containing Sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under Section 173(3B). The High Court Division rightly allowed the investigating agency of holding further investigation even after submission of the police report and after acceptance ance of the same. The facts, circumstances and law related thereto, we do not find any wrong in the decision of the High Court Division which calls for any interference by this Division......Monjur Morshed Khan VS Durnity Daman Commission, [5 LM (AD) 241) Section 154 F.I.R- The case is to be assessed on merit on the basis of the evidence adduced before it Where there is no F.I.R. or where the F.I.R. cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it.... (Nazmun Ara Sultana, J). State -VS- Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430] Section 154- Second F.I.R- Recording of second FIR depends upon the facts of each case and the matter is to be seen in the context of totality of the circumstances and allegations. In the instant case due to onesided version disclosed in earlier FIR No.17/2010, the investigating agency never bothered to look into the crime from another angle as narrated in the other FIR dated 27.08.2015, which means that as per assertions of Respondent No.1, the alleged culprits could have otherwise escaped from their criminal liability successfully at the very initial stage without even being charged for the offence on the basis of misleading contents of earlier FIR....... Ali Muhammad =VS= Syed Bibi, [1 LM (SC) 645] Section 155 Section 155—A police officer is not to investigate into a non-cognizable case under Section 155 CrPC without the order of a Magistrate of the first or second class. Under the l4w when the police has a report of a non-cognizable offence he is bound to refer the informant to the Magistrate for initiating the process of investigation. Aroj Ali Sarder vs State 41 DLR 306. Sections 155, 190 & 195-There is nothing in the law to prevent a police officer from making a complaint when some facts come to his knowledge even if he cannot investigate them. Abul Hossain vs State 55 DLR (AD) 125. Sections 155, 190 & 537—Non cognizable offence—Mere irregularity like investigation by an officer not authorised to investigate a non – cognizable offence does not affect the legality of a proceeding of a Court below Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a non-cognizable offence under clause (a) or (b) of Section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140. Section 155(2)—There is no legal bar on the part of the police officer receiving an information about a non-cognizable offence in recording the same in the general diary and obtaining permission from a competent Magistrate to investigate into the case. Nasiruddin Kazi vs Aleya Khatun alias Fulu 48 DLR 216. Section 155(2)—Without complying with the provisions of Section 155(2) of the Code the police held investigation of the non-GR case. The subsequent taking of cognizance by the Magistrate is certainly an abuse of the process of the Court. Mohiuddin Ahmed vs State 63 DLR 564 Section 155(2), 241A—The matter should be sent back to the Magistrate for hearing specifically on the point whether the investigation can be proceeded and police report can be submitted under Section 509 Penal Code without the permission of the Magistrate. Abul Hossain vs State 53 DLR 402. Section 156 Sections 156(3) & 200—There is nothing wrong in the procedure adopted by the Magistrate directing the police to hold investigation treating the petition of complaint as a First Information Report Cases reported in 6 DLR (WP) 205 and 54 Cal 305 are not applicable in the facts of the present case. Yakub Ali vs State 47 DLR (AD) 94. Sections 156(3) & 190(1)-The prayer made by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making reinvestigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed All @ Subed 47 DLR 252. Section 156-While sub-Section 1 of Section 156 empowers the OC of the concerned police station to investigate any cognizable offence without being ordered by the Magistrate, sub-Section 3 of the same, thereafter, seeks to clarify that, by investing the OC with the power, the Magistrate has not been made powerless to order an investigation in the matter which is mentioned in sub-Section I of Section 156. Dr Akhtaruzzaman vs State, 70 DLR 513 Sections 156, 167 and 173-The legislature has not contemplated investiga- tion into a case by two investigation agencies at a time or simultaneously. A reading of these Sections does not also show that investigation into a case by two investigation agencies can be done at a time or simultaneously. State vs Secretary, Ministry of Public Administration, 67 DLR (AD) 271 Sections 156 and 173(3B)-No doubt, where there is already an investigation culminating in a police report, the court can trigger into motion the power of the police to conduct further investigation under Section 173(3B) of the Code. The provision does not provide any specific provision that in order to hold further investigation by the police, it is necessary to take permission of the Court. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120. Sections 156 and 200-Naraji Petition Narajoo is to be treated as fresh complaint, the Court can take cognizance of an offence if, in his opinion, there is sufficient ground for proceedings and discharge the accused where no sufficient ground exists. Rabeya Khatun vs. Dr. Md Shahadat Hossain, 67 DLR 447. Section 157 Section 157—First Information Report— FIR cannot be substituted for evidence given on oath and when there is no other evidence the facts mentioned in the information could not be relied upon as proof of the offence alleged. Babul vs State 42 DLR (AD) 186. S. 157-The factor of time mentioned in Section 157 is very important to serve as a safeguard against fabrication of false evidence. The statement made at or about the time when the Occurrence took place may be proved and used to corroborate the testimony of a witness and statements made long after the occurrence cannot be used as corroboration as it does not exclude the chance of false implication of the innocence person. State Vs. Kazi Mahbuddin Ahmed, 18 BLC (2013)-AD-210. Section 160 Section 160—Since there is no reference as to any investigation or inquiry in the notice issued by the police officer asking the petitioner to produce documents the same has been issued in an unauthorised manner. Mohsin Hossain vs Bangladesh 49 DLR 112. Section 161 Section 161—The right of cross-examination on the basis of witnesses’ previous statements under Section 161 CrPC having not been available, prejudice to the defence could not be ruled out. The right given to the accused of getting copies of the statements under Section 161 CrPC is a valuable right. End of justice requires setting aside the conviction. State vs Zahir 45 DLR (AD) 163. Section 161—The examination of prosecution witnesses under Section 161 CrPC after a considerable lapse of time casts serious doubt on the prosecution story. Mom Ullah vs State 40 DLR 443. Section 161—The investigation officer having not been cross-examined on the question of delay in recording the statement under Section 161 CrPC, there is no substance in the contention that the delay should have been taken as a factor to question the veracity of the witnesses concerned. Shadat Ali vs State 44 DLR 217. Section 161—The trial Court illegally referred to and considered the statements of witnesses recorded under Section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker vs State 49 DLR 480. Section 161—Due to lapse of time in recording of their statements, witnesses indulge in concoction of the prosecution case, more so when they are inimically disposed to the accused. Moreover, one tainted evidence cannot corroborate another tainted evidence. In a case where enmity is admitted the evidence of such witnesses are liable to be closely scrutinised and unless there are corroboration by cogent, independent and disinterested witnesses the evidences of such witnesses who are inimically disposed are not accepted as the basis for conviction, particularly in a murder case. State vs Hosen Sheikh @ Hochen 50 DLR 508. Section 161—Because of belated examination of witness by the Investigating Officer for no plausible reason, possibility of embellishing the prosecution case by the witness cannot be ruled out. State vs Babul Hossain 52 DLR 400. Section 161—Judges are competent to take judicial notice of the fact about the present condition of law and order situation in the country and, as such, it is not unlikely that a witness will hesitate to tell the truth for fear of his life. Mahmudul Islam vs State 53 DLR (AD) 1. Section 161—Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording of statements when memory of witness remains fresh as human memory is always fleeting. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513. Section 161—The contradiction of the statement under Section 161 of the Code of Criminal Procedure with the ultimate testimony of the PWs made before the trial Court has adverse effect upon the reliance of the prosecution witnesses which reduces the evidentiary value of the testimony of the PWs as adduced at the trial which makes the witness unreliable on the point on which the witness has contradicted. Zamir Ali (Md) vs State 59 DLR 433. Section 161—Inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653. Section 161—Investigating officer did not assign any reason for the long delay in examining the PWs. Delay in examining the witnesses under Section 161 of The Code is fatal to prosecution case and statements of witnesses are required to be left out of consideration. Sahabuddin vs State 61 DLR 54. Section 161—Under certain circumstances delay of a few days even, may render the testimonies of the prosecution witnesses doubtful but yet there may be cases is which delay of years together may not do so. State vs Resalder Moslem uddin 61 DLR 310. Section 161—Benefit of doubt—It was the failure on the part of the Investigating Officer tO detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient attitude from the Court because of their involvement in such a horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali Shah and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Therefore, the two condemned-prisoners are entitled to be acquitted on the principle of benefit of doubt. State vs Resalder Moslemuddin 61 DLR 310. Statement of witnesses before police Inordinate delay in recording statement of a witness u/s 161 Cr.P.C-the weight of the evidence of such witness is diminished. Haji Md. Jamaluddin& others Vs. The State, 14 BLD (HCD) 33. Statement before Police Omission of vital fact by the witnesses re- corded by the investigating officer that he saw the condemned prisoner and his wife in the night of occurrence of going inside the hut and that they slept inside the hut in the night preceding the morning of which condemned prisoner's wife was found dead is unreliable. The witnesses having not stated at the earliest point of time, the said evidence cannot be relied upon in Court. The State Vs. Azizur Rahman Habib, 20 BLD (HCD) 467. Statement of witnesses before police Inordinate delay in recording the statement of witnesses by the LO under Section 161 Cr.P.C. renders their evidence shaky. Zafar and others vs. The State, 14BLD (HCD)280 33 DLR 320: 11 D.L.R. (HC) 365; 27 D.L.R. (SC) 1: 38 DLR 289: 41 DLR 11: 50 Cr.L. J. 569. Section 161—Unexplained delay in recording the statements of eye-witnesses by Investigation Officer casts a doubts as to the truthfulness of their testimonies. They had been given chance of concoction and false implication. Therefore, their evidence should be left out of consideration. When a witness is cross examined bya party calling him, his evidence is not to be rejected either in whole or in part but the whole of evidence so far as it affects both parties favourably or unfavourably must be taken into account and assessed like any other evidence for whatever its worth. Jalaluddin vs State 58 DLR 410. Section 161—The witness claiming to have seen the occurrence admittedly resides at a far off place—Some time had therefore elapsed to find him and for recording his statement No adverse presumption should be drawn because of the delay in recording his statement. State vs Mokammel Hyeath Khan 58 DLR 373. Sections 161 & 162—A statement of a witness recorded under Section 161 CrPC couldn’t be used as substantive evidence. It can only be utilised under Section 162 CrPC to contradict such witness in the manner provided by Section 145 of the Act. State vs Nazrul Islam 57 DLR 289. Sections 161 & 162—Statements made under Section 161 CrPC are not substantive evidence. Such statements can only be utilised under Section 162 CrPC to contradict the witness in the manner provided by Section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387. Sections 161 and 162—An omission from the statement recorded in a boiled form does not amount to contradiction and the alleged contradiction sought to be taken from the omission of the statement cannot, in a particular case, be proved under Section 162 of the Code to hold that contradiction in accordance with the provision of Section 162 has been established. Abul Kalam Azad alias Ripon vs State 58 DLR (AD) 26. Sections 161 and 162—When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Abul Kalam Azad alias Ripon (Md) vs State 58 DLR (AD) 26. Sections 161, 164, 173 & 205C—Statement recorded under Section 164 of the Code comes within the purview of the word ‘document’ used in Section 173 and Section 205C and such statements should be transmitted to the Court of Session along with the case record under Section 205C. Nurul Islam Manzoor vs State 52 DLR 276. Sections 161, 164 & 342—The accused failed to discharge his obligation. The certified copies of the statements under Sections 161 and 164 of the Code of the maids and others of the house of the accused filed by the accused at the time of examination under Section 342 of the Code in support of his case that the deceased committed suicide by hanging are not evidence and, as such, cannot be considered. There is no evidence that the deceased committed suicide by hanging. Moreover the accused’s explanation that the deceased committed suicide by hanging has been proved untrue. It is proved beyond doubt that the deceased was done to death. There is nothing to hold that anybody else besides the accused could cause the death of the deceased. State vs Azam Reza 62 DLR 399. Sections 161 & 241A—Consideration of the statements made under Section 161 of the CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. Shaheb All vs State 52 DLR 366. S. 161-It is contended that the prosecution witnesses were examined about one month after the occurrence under Section 161 of the Code of Criminal Procedure and as such, for inordinate delay in recording their statements, the evidence adduced by them in Court should have been discarded. Admittedly, a statement recorded under Section 161 of the Code of Criminal Procedure is not a substantive evidence. Mere delay in recording the statements of the prosecution witnesses under Section 161 of the Code of Criminal Procedure can not be considered fatal if the evidence adduced by them in Court appears to be credible after sifting....(15). Shahjahan Khalifa Vs. The State, 10 ADC (2013)-Page-172. S. 161-The investigating fficer did not examine the persons who were vital witnesses and for want of their evidence the prosecution had measurably failed to prove its case beyond all reasonable doubt. Abul Hashem Vs. State (Criminal), 18 BLC (2013)-HCD-74. S. 161-Statement recorded u/s 161 of the Code is not substantive evidence. Mere delay in recording the statement of a witness by the investigation officer of the u/s 161 Cr.P.C. is not fatal to the prosecution if the evidence of such witness adduced by them before the Court appears to be credible on sifting of the evidence. Shahjahan Khalifa Vs. The State, 2 ALR (2013)-AD-78. Section 161-Non-mentioning of name of the petitioner in the 161 statements cannot exclude him from all possibilities of implication as an abettor of the offence because he is a beneficiary of the illegal transaction which was allegedly done in connivance with other accused named in the FIR and the charge-sheet. Ali Haider Chowdhury vs State, 65 DLR 116. Section 161-Mere delay in recording the statement of a witness by the investi- gation officer cannot be the sole ground to discard his evidence, if he withstands the test of cross-examination and thus appears to be truthful witness. As many as 3 (three) different Police Officers investigated the case, and it appears to us that the change of Investigation Officer also contributed to the delay in examining them. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6. Section 161- "Heads (iii) and (iv) shall be noted regarding the particulars of the house searched made with the names of witnesses in whose presence search was made (Section 103 of the Code) by whom, at what hour, and in what place arrests were made; in what place property was found, and of what description; the facts ascertained; on what points further evidence is necessary, and what further steps are being taken with a view to completing the investigation. The diary shall mention every clue obtained even though at the time it seems unprofitable, and every step taken by the investigating officer, but it shall be as concise as possible. It shall also contain the statements of witnesses recorded under Section 161 of the Code." "264.(a) Case diaries (B.P. Form No. 38) shall be written up as the enquiry progresses, and not at the end of each day. The hour of each entry and name of place at which written shall be given in the column on the extreme left. A note shall be made at the end of each diary of the place from, the hour at, and the means by which, it is dispatched. The place where the investigation officer halts for the night shall also be mentioned. (b) A case diary shall be submitted in every case investigated. The diary relating to two or more days shall never be written on one sheet or dispatched together. Two or more cases should never be reported in one diary; a separate diary shall be submitted in each case daily until the enquiry is completed. But it is not necessary to send one on any day on which the investigation, though pending. is not proceeded with. (c) The diary shall be written in duplicate with carbon paper and at the close of the day the carbon copy, along with copies of any statement which may have been recorded under Section 161 Code of Criminal Procedure and the list of property recovered under Section 103 or 165 of that Code, shall be sent to the Circle Inspector. When an investigation is controlled by an Inspector of the Criminal Investigation Department, the investigating officers shall forward the Circle Inspector's copy of the case diary through that officer who shall stamp or write on the diary the date of receipt by him and, after perusal, forward it to the Circle Inspector. (d) In special report cases an extra carbon copy shall be prepared of the diaries. statements of witnesses recorded and lists of property recovered and sent direct to the Superintendent and a further carbon copy to the (Sub-divisional) Police Officer where there is one. (e) Each form shall have a separate printed number running consecutively throughout the book so that no two forms shall bear the same number. On the conclusion of an investigation the sheets of the original diary shall be removed from the book and filed together. Every file shall be docketed with the number, month and year of the first information report, the final form submitted and the name of the complainant, the accused and the investigating officer. The orders regarding preservation and destruction of these papers shall also be noted. (f) When sending charge-sheet to the Court Officer, the investigating officer shall send all his original case diaries which shall be returned by the Court Officer on the case being finally disposed of (vide regulation 772). (g) Case diaries shall be written in English by those officers competent to do so. Other officers shall write either diaries in the vernacular. Statements recorded under Section 161 of the Code of Criminal Procedure, shall, however, always be recorded in the language of the witness. In the investigation officer is unable to do so, he should write it in English. (h) Instructions for the custody and dispatch of case diaries are given in regulation 68. Ministry of Law, Justice & Parl. Afrs. =VS-BLAST, (3 LM (AD) 274] Section 162 Section 162-Section 162 of the Code of Criminal Procedure states that no statement made by any person to a police officer in course of investigation under Chapter XIV shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made whether it was signed by the person making it or it was reduced into writing. The Appellate Division observed that there is clear bar to taking into consideration any statement made by any person accused of an offence to a police officer in course of investigation as evidence against him. Any statement made to a police officer can be used for the purpose of corroboration or contradiction of the maker of the statement. .....Md. Tofajjal Hussain -VS- The State, [1 LM (AD) 483] Section 162—Test identification—The substantive evidence of a witness as regards identification is the statement made in the court. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances the witness came to pick out the particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity. Shamsul Alam vs State 56 DLR 218. Section 162—Statements made to the Police in course of investigation of an offence started on the basis of FIR are admissible in evidence. Ext I not being statements made in course of investigation to the Police comes within the above provision of law. Nurul Islam vs State 40 DLR 122. Section 164 Editors’ Note This is a case of brutal killing of a 11-year-old boy for ransom by his uncle and uncle’s cohorts in which the dead body of victim could not be found due to cutting it into pieces and throwing them in the water body connected with sea. There was no eyewitness to the occurrence. Appellant made a confessional statement. The Appellate Division examining the confessional statement of the appellant found it to be voluntary and true and also found that the circumstantial evidence unerringly pointing to the guilt of the appellant but considering the length of period spent by the appellant in the condemned cell and other circumstances commuted his sentence of death to one of imprisonment for life. Section 164 of the Code of Criminal Procedure: It is well settled that the confessional statement can be the sole basis of conviction if it is made voluntarily and it is true. In the instant case, the confessional statement of the appellant is voluntary and true and it was rightly found to be so by both the trial Court and the High Court Division. It is true that there is no eye witness in the instant case, but the inculpatroy, true, and voluntary confessional statement of the convict-appellant, and the circumstances are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellant in committing murder of the victim Rashed. ...(Paras 40 & 41) 16 SCOB [2022] AD 51. Editors’ Note This is a case of gang rape and murder. There was no eyewitness. Appellants were suspected of being involved with the commission of crime. Police arrested appellant Mamun and Azanur who gave confessional statements describing vividly the role played by them and other co-accused, namely, Shukur and Sentu in committing the crime which was supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses regarding the marks of injury on the body of the deceased. The Appellate Division held that in such case the non-confessing accused persons can be equally held liable like Azanur and Mamun for murdering the deceased after committing rape. The Court further observed that, the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial and adverse inferences may be drawn upon silence on part of those who have been so incriminated by the confession of the co-accused. However, the Appellate Division maintained the death sentence of the appellant Shukur Ali who inflicted fatal knife injuries to the deceased and commuted the sentence of death of other appellants to imprisonment for life. Section 164 of the Code of Criminal Procedure and Section 8 of the Evidence Act: It is true that there is no eye witness in the instant case, but the inculpatory, true, and voluntary confessional statements of two accused, and the circumstances particularly long absconsion by Shukur and Sentu are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellants Shukur, Sentu, Mamun and Azanur in the alleged rape and murder thereof. ...(Para 63) Due process vis-a-vis crime control consideration: In performing our duties, this court is charged with the task of not only assessing the facts against the law, but also considering the impacts of judgments that are pronounced and any assessment made on the overall justice system. With modern criminal justice mechanism, the right against self-incrimination is one that stands as a cornerstone. As such, confessions by a co-accused are generally inadmissible against the accused in a concerned case. However, in our duties of administering justice, we are sometimes faced with a case that forces us to consider aspects of larger policy at play. The balance between crime control and due process models of justice is such a consideration that requires reassessment with changing times and upon the fact of each case. The case before us is one of such a heinous crime, where measures of control are made far more necessary, to ensure that justice can be brought to the victim in question. As such, while due process is still of utmost importance; crime control considerations must be made as well. ...(Para 64, 65 and 66) Adverse inferences may be drawn upon silence on part of those incriminated: The principle of the right against self incrimination is also accompanied by the principle that upon silence on part of those incriminated, adverse inferences may be drawn at any stage of the trial and pre-trial procedures. When the co-accused, Azanur and Mamun put forth their confessions, incriminating the accused Shukur and Sentu, they had the opportunity to present their accounts of the events in question. Their refusal to adduce defence witness and to give any statement, allows this Court to draw an adverse inference against them, in conjunction with the inferences drawn from the period of their absconcion. ...(Para 68 and 69) Section 30 of the Evidence Act: We hold that confessional statement of a co-accused can be used against others non[1]confessing accused if there is corroboration of that statement by other direct or circumstantial evidence. In the instant case, the makers of the confessional statements vividly have stated the role played by other co-accused in the rape incident and murder of the deceased which is also supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses particularly the deposition of P.Ws.1,2,3,10,11,12,14 and 18 regarding the marks of injury on the body of the deceased. Every case should be considered in the facts and circumstances of that particular case. In light of the facts and circumstances of the present case, we are of the view that the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial. (Emphasis added). Thus, the accused namely Shukur and Sentu are equally liable like Azanur and Mamun for murdering the deceased after committing rape. ...(Para 70) 16 SCOB [2022] AD 62. Section 164 of the Code of Criminal Procedure, 1898: In the case before us, we however, have found that the order of conviction and sentence is not based solely on the confessional statement of the convict, rather it is based on the testimony of the witnesses. Moreover, the material exhibits, inquest reports, post mortem reports all these evidence clearly establish the complicity of the convict in the commission of the offence, he has been charged with. In this case, the confessional statement under Section 164 of the Code of Criminal Procedure, is supported by other evidences and corroborated by the oral evidences. Moreover, when the truth of the statement made in the confessional statement are established by other relevant, admissible and independent evidences, then the voluntary nature of the same is proved. We have found the confessional evidence as true and voluntary. (Para 33 and 34) Effect of delay in producing the accused: We are of the opinion that, even if, there were some unintentional delay or failure of the police to produce the accused within 24 hours, this mere delay alone should not be a ground to brush aside a confessional statement which has been found to be truth and voluntary in nature, since established by other evidence. (Para 35) [18 SCOB [2023] HCD 8] Editors’ Note This is a case where a renowned Professor of University of Rajshahi was brutally murdered by one of his colleagues. There were no eye witnesses. Based on the circumstantial evidence police arrested the caretaker of the house where the victim lived. The arrested accused confessed under Section 164 of the Code of Criminal Procedure, 1898. Accordingly the investigation Officer arrested other co-accused and two of them confessed. But the mastermind of the killing, an Associate Professor of the same University declined giving any confessional statement. The Appellate Division found that the strong circumstantial evidence coupled with confessions of the co[1]accused and motive of killing proved by the prosecution point unmistakably to the guilt of the mastermind of the murder and confirmed the conviction and sentence awarded by the High Court Division. Appellate Division also discussed the effect of alleged prolonged police custody upon the acceptability of confessional statement of one of the convicts and discrepancy between confession and medical evidence. Section 164 of the Code of Criminal Procedure If a confessional statement does not pass the test of voluntariness, it cannot be taken into consideration even if it is true: The Evidence Act does not define “confession”. The courts adopted the definition of “confession” given in Stephen’s Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. The act of recording a confession is a very solemn act and Section 164 of the Code of Criminal Procedure lays down certain precautionary rules to be followed by the Magistrate recording a confession to ensure the voluntariness of the confession. In such a case, the accused being placed in a situation free from the influence of the Police is expected to speak out the truth being remorseful of what he has committed. A confession can be acted upon if that passes two tests in the assessment of the court. The first test is its voluntariness. If a confessional statement fails to pass the first test, the second test is immaterial. If he does not disclose his complicity in an alleged crime voluntarily, court cannot take into consideration the confessional statement so recorded, no matter how truthful an accused is. (Para 41) It appears to us that the confessional statements pertaining to assault by knife substantially fit the medical evidence. It is only when the medical evidence totally makes the ocular evidence improbable, then the court starts suspecting the veracity of the evidence and not otherwise. That the mare fact that doctor said that injury No.1 was an “incised looking injury”, not “incised injury”, is too trifling aspect and there is no noticeable variance. The opinion of the doctor cannot be said to be the last word on what he deposes or meant for implicit acceptance. He has some experience and training in the nature of the functions discharged by him. After Zahangir inflicted the knife blow in the occipital region of victim Professor Taher, the other accused pressed down a pillow in his face to ensure his death. After confirming the victim’s death, the accused persons took the dead body to the back side of the house on a dark night and the appellant Mohiuddin ushered them the way with the torchlight of his mobile. They then put the dead body inside the manhole. In doing so the accused had to carry the dead body to a considerable distance and during that time the dead body might have fallen from their grip causing crushing of hair bulbs in the already injured occipital scalp and rendering the incised wound look like ‘incised looking’ wound. ... (Para 43) Confessions are considered highly reliable because no rational person would make an admission against his interest unless prompted by his conscience to tell the truth. Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law “(vide Taylor’s Treaties on the Law of Evidence)”. Confession possesses a high probative force because it emanates directly from the person committing the offence, and on that count, it is a valuable piece of evidence. It is a settled principle of law that the conviction can be awarded solely on the basis of confessional statements of the accused if the same is found to be made voluntarily. ... (Para 44) Prolonged police custody; Article 33 (2) of the Constitution: It has been vehemently argued by the defence that appellant Zahangir Alam was kept in the police station from 03.02.2006 to 05.02.2006 i.e beyond the permitted period of 24 hours without taking him before a Magistrate and this illegal detention of the appellant suggests that the confessional statement given by him is not voluntary. From the cross[1]examination of PW-42 Md. Faizur Rahman, the then Officer-in-Charge of Motihar Police Station, it appears that appellant Zahangir Alam was taken to the police station on 03.02.2006 for questioning him about the occurrence. At that time he was not arrested in connection with this case. In fact, when Zahangir was taken to the police station on 03.02.2006the whereabouts of Professor Taher was not known to anybody and no formal ejahar was lodged. After the discovery of the dead body of Professor Taher Ahmed PW-1 lodged a formal FIR at around 10.10 AM on 03.02.2006. Even at that time, PW-1 did not make Zahangir an accused. It suggests that he was not taken to the police station as an accused. He was just taken there for questioning. The Investigating Officer of a case has the power to require the attendance of a person before him who appears to be acquainted with the circumstances of the case. When appellant Zahangir Alam was taken to the police station the facts of the killing of Professor Taher were still unfolding and nobody knew who did what. Appellant Zahangir Alam, being the caretaker of the house of the victim, was the best person to demystify and clear many questions about the occurrence posing inside the mind of the Investigating Officer. He was thought to be a vital person who could shed light on many unsolved questions and could help the prosecution to understand what actually happened there. But when from the circumstances it appeared unmistakably that Zahangir Alam must be one of the perpetrators of the killing of victim Professor Taher, he was then arrested on 04.02.2006 and was produced before the Magistrate on the next day, i.e., within 24 hours of his arrest as required by Article 33 (2) of the Constitution. So, the police did nothing wrong in arresting appellant Zahangir Alam after being sure about his complicity with the offence and producing him before the Magistrate within 24 hours of his arrest and for that reason, the defence objection does not sustain. (Para 45 and 46) From a careful evaluation of the confessional statements, we are of the opinion that their statements are consistent with one another and corroborates the version given by each other. We are therefore, of the view that confessing accused were speaking the truth. (Para 47) When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive: In a criminal case, motive assumes considerable significance. Where there is a clear proof of motive for the offence, that lends additional support to the finding of the Court 5 that the accused is guilty. When a case against an accused rests completely on circumstantial evidence, the prosecution is required to prove the motive of the accused for committing the offence. (Para 52) A complete review of the evidence indicates that there was pre-existing hostility between the victim and appellant Mohiuddin. The motive for the commission of the murder is explicit from the evidence of P.Ws 22, 25, 39 and 43 which is relevant. Proof of motive does lend corroboration to the prosecution case. The same plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor. Motive prompts a person to form an opinion or intention to do certain illegal acts with a view to achieving that intention. Adequacy of motive is of little importance as it is seen that atrocious crimes are committed for very slight motives. One cannot see into the mind of another (State Vs. Santosh Kumar Singh, 2007 Cr LJ 964). However, motive alone is not sufficient to convict the accused in case of circumstantial evidence. Along with motive, there should be some further corroborative evidence. (Para 55) A voluntary and true confession made by an accused can be taken into consideration against a co-accused by virtue of Section 30 of the Evidence Act but as a matter of prudence and practice the Court should not act upon it to sustain a conviction of the co[1]accused without full and strong corroboration in material particulars both as to the crime and as to his connection with the crime [Ram Prakash V. State of Punjab (1959 SCR 1219)]. “As is evident from a perusal of Section 30 extracted above, a confessional statement can be used even against a co-accused. For such admissibility it is imperative, that the person making the confession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, such a confessional statement is relevant even against the others implicated. (Para 61) A Judge does not presides over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape the tentacles of justice. That is what the justice stands for. (Para 65) The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent. While awarding punishment, the Court is expected to keep in mind the facts and circumstances of the case, the legislative intent expressed in the statute in determining the appropriate punishment and the impact of the punishment awarded. Before awarding punishment a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. Considering the depraved and shameful manner in which the offence has been committed, the mitigating factor would not outweigh the aggravating factors. In this case, there was no provocation and the manner in which the crime was committed was brutal. It is the legal obligation of the Court to award a punishment that is just and fair by administering justice tempered with such mercy not only as the criminal may justly deserve but also the right of the victim of the crime to have the assailant appropriately punished is protected. It also needs to meet the society’s reasonable expectation from court for appropriate deterrent punishment conforming to the gravity of offence and consistent with the public abhorrence for the heinous offence committed by the convicts. (Para 67) [17 SCOB [2023] AD 1] Code of Criminal Procedure (V of 1898) Section 164(3)- The act of recording a confession is a very solemn act and Section 164 of the Code lays down certain precautionary rules to be followed by the Magistrate recording a confession to ensure the voluntariness of the confession. In such a case, the accused being placed in a situation free from the influence of the policeis expected to speak out the truth being remorseful of what he has committed. A confession can be acted upon if that passes two tests in the assessment of the court. The first test is its voluntariness. If a confessional statement fails to pass the first test, the second test is immaterial. If he does not disclose his complicity in an alleged crime voluntarily, court cannot take into consideration the confessional statement so recorded, no matter how truthful an accused is. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8 Section 164—The trial Court misdirected itself when he had convicted appellants on the basis of statements of witnesses made under Section 164 by treating them as confessional statements. Muslim vs State 47 DLR 185. A confession should always be recorded during the Court hour. If it is recorded beyond the Court hour reason must be assigned that compliance of the condition was not practicable or that reasons for satisfaction be noted that justice would not be defeated for recording of the confession beyond the Court hour. Otherwise, it would certainly make out a scope to raise a question as to why the learned Magistrate had recorded it beyond the Court hour or what necessitated him to record it at that point of time, when he could have easily recorded it on the following day, if the maker really wanted to make it. The very purpose of the rule to ensure the regularity of recording confession and the precaution and safeguard provided in the rule would reduced it to such trifling value as to be almost idle, if not complied with. [73 DLR 348] On going through the confession, we do not find any reason is assigned by the learned Magistrate for recording the confession beyond the Court hour at about 7-30 pm. It is nowhere stated in the confession or in the order sheet that compliance of the condition attached with the rule for recording the confession was not practicable and justice would be defeated if the confession was not recorded at that point of time. [73 DLR 348] Section 164(3) Acceptability of a confession depends on the satisfaction of confession recording Magistrate. [73 DLR 18] Section 164 read with Penal Code [XLV of 1860] Sections 302 and 34 Belated retraction of the confessional statement and the allegations of torture by the police cannot be accepted since the accused was present throughout the trial and represented by a lawyer, and he could have retracted his confessional statement at any time within the 6 years while the trial was going on. [2022] 24 ALR (AD) 4 Section 164—Statements recorded under Section 164 of the Code cannot be treated as substantive evidence of the facts stated therein. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139. Section 164—Retraction of confession—Once a confession is found to be true and voluntary, a belated retraction will be of no help to the confessing accused. The necessity even of some sort of corroboration in such cases is not a requirement of law but it is usually desired as a rule of prudence. State vs Tajul Islam 48 DLR 305. Section 164—It is settled principle that one part of the confession cannot be accepted and other part be rejected. It is an error to split up the confessional statement and use that part only which is favourable to prosecution. State vs Lokman Miah 48 DLR 149. Section 164-The defect of non-compliance of Section 164 CrPC by the Magistrate while recording a statement cannot be cured by his examination in Court. State vs Raisuddin 48 DLR 517. Section 164—Before a confessional statement is relied upon it must be found that it was not only voluntary but also true. Voluntariness and truth together make it worthy of acceptance. Moslemuddin vs State 48 DLR 588. Section 164—Confessional statement recorded on a plain paper without the narration of questions and answers and without complying with the provisions of Section 164 CrPC becomes inadmissible. The accused was kept in police custody for 3 days preceding his confession and the forwarding report mentions injuries on his person. Confession is involuntary. Alaluddin alias Alauddin vs State 49 DLR 66. Section 164—Statement of a person recorded under Section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under Section 164 CrPC can only be used for contradicting the maker of it under Sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under Section 157 of the Act. Seraj Miah vs State 49 DLR 192. Section 164—The rule of prudence requires that a retracted confession needs corroboration inasmuch as it is open to suspicion. It is unsafe to rely on such confession without corroboration from other sources. Alaluddin alias Alauddin vs State 49 DLR 66. Section 164-As against the maker himself his confession, whether judicial or extra judicial, whether retracted or not retracted, can validly form the sole basis of his conviction, if the Court believes that it was true and voluntary and was not obtained by torture or coercion. Abul Kashem vs State 49 DLR 573. Section 164—When the accused were kept in police custody for two days, it was the duty of the Magistrate, who recorded their confession, to put questions as to how they were treated in the police station, why they were making confession and that if they made a confession or not they would not be remanded to police custody. Further, it is found in the record that the Magistrate did not inform the accused persons that he was not a police officer but a Magistrate. On scrutiny we find in the record that magistrate sent the accused persons to the police custody after recording their confessional statements. Therefore, we find the Magistrate had no idea or acumen that it was his legal duty to remove the other, inducement and influence of the police completely from the mind of the accused before recording their confession, So, therefore, we hold that the confessions made by the accused cannot be considered either against the maker or against their co-accused. State vs Abul Hashem 50 DLR 17. Section 164-Exculpatory statement uncorroborated by any other evidence cannot be the basis of conviction. Abu Jamal vs State 51 DLR 57. Section 164-There is no hard and fast rule that a retracted confession must be discarded. Retracted confession can form the basis of conviction if it is found true and voluntary. State vs Tota Mia 51 DLR 244. Section 164—There is no requirement under the law for the Magistrate to inform the confessing accused that whether he confessed his guilt or not he will not be handed over to the police. The submission of the learned Advocate that the absence of observing the formalities by the Magistrate regarding recording the confessional statements by saying that whether they confess of not they will not be handed over to the police and in view of not reporting of the fact by the confessing accused themselves that they confessed their guilt due to physical torture the submission of the learned Advocate for the appellants appears to have no bearing in this case. Rafiqul Islam @ Rafiq vs State 51 DLR 488. Section 164—A retracted confession cannot be used to base a conviction for murder unless corroborated by credible independent evidence. State vs Manik Bala 41 DLR 435. Section 164—Statement recorded under Section 164 CrPC cannot be used as substantive evidence against the accused person except for contradicting or corroborating its maker. State vs Manik Bala 41 DLR 435. Section 164-Confessional statement subsequently retracted—To base a conviction for murder upon a refracted confession alone is not safe when the proof of factum of murder is dependent upon that confession. State vs Manik Bala 41 DLR 435. Section 164-Confession—Question of credibility when part of the occurrence is omitted or suppressed—It cannot be found nor it could be suggested by either the prosecution or the defence why throttling part of the occurrence was omitted or suppressed. Even if it be taken that accused Rina had deliberately suppressed the throttling part of the occurrence in her judicial confession that cannot mean that the confession was not true. Shahjahan Manik vs State 42 DLR 465. Section 164—Confession—Its nature and credibility—The recording Magistrate having not made any genuine effort to satisfy himself to find out the real character of the confession it casts a serious doubt on the voluntariness of the confession which is the basic requirement of law. Akhtar Hossain alias Babul Akhtar alias Akhtar Ali vs State 44 DLR 83. Section 164-Confessional statement—Such statement whether retracted or not, if found to be true and voluntary, can form the basis of conviction of the maker. Confessional statements, credibility of—The UNO stated that he recorded the statements merely in his own language—there is nothing to show that he gave the accused warnings before recording the same, there is nothing to show the time given for reflection, it was not mentioned whether police were present at the time of recording—The Magistrate also did not inform the accused that they would not be sent to police custody after the making of the statements and the Magistrate’s statement as to the presence of PW 5 at the time of recording of the statements is contradictory to that of the latter—the confessional statements, in such facts and circumstances, are neither voluntary nor true. Hafizuddin vs State 42 DLR 397. Section 164—Conviction can be based solely on confession, if found true and voluntary, though retracted subsequently. Hazrat Ali & Abdur Rahman vs State 42 DLR 177. Section 164-Confession—Rule of law as opposed to rule of prudence—Whether conviction can be based on confession if voluntary and true. For ascertaining as to whether the confession is voluntary and true or not the Court has to examine the confession itself and consider the same in the light of the materials on record and broad probabilities of the case. There is no reason to disbelieve the evidence of the learned Magistrate who recorded the confession. No material could be elicited by the defence that the confession was the result of torture and maltreatment and hence it was not voluntary and not true as well. Hazrat Ali & Abdur Rahman vs State 42 DLR 177. Section 164—Retracted confession—A confession can be taken into evidence, though retracted, if found to be true and voluntary. A belated retraction at the end of the trial would be of no value. State vs Nurul Hoque 45 DLR 306. Section 164—Statement made by the victim of an offence, when it can have evidentiary value—In the absence of examination of the alleged victim, her statements allegedly made to the police or to the Magistrate cannot be treated as evidence against the accused. As neither the victim girl nor the magistrate was examined, the statements recorded by the latter is not even a secondary evidence and in that view it is no legal evidence to prove the prosecution case. Abul Kashem vs State 43 DLR 420. Section 164—Confessional statement—The Magistrate having admitted that after recording the confessional statement, the condemned- prisoner was sent back to the police custody, his confessional statement is to be treated as not voluntarily made. State vs Ali Kibria 43 DLR 512. Section 164—The Magistrate while recording the confession did not record any questions and answers. But then he made real endeavor for coming to the conclusion that the statement was voluntary. The omission to record questions and answers cannot be considered as fatal defects when confession was made duly, though not recorded duly, for want of prescribed form. Facts stated in the confessional statement appear to be consistent with the evidence of PWs. In that view, the confessional statement is true as well. State vs Kalu Bepari 43 DLR 249. Section 164—Credibility of confessional statement—No substantial compliance would cure the defect of noncompliance with the provisions of Section 164 CrPC on material points. Confessional statement in a plain paper without the narration of questions and answers would not, by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happened, how he warned and gave time for reflection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s j believing the same to be voluntary ought to be treated as conclusive evidence of facts stated J therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389. Section 164—Confessional statement of appellant Dablu runs counter to the prosecution case. The whole story is inconsistent with the “confessional statement of the appellant—PW 2 changed the version in Court which differs from the FIR about the number of participants in the murder. Circumstances of the case—PW 4 statement differs from the confessional statement of appellant Dablu rendering it contradictory to each other. Mizazal Islam vs State 41 DLR (AD) 157. Section 164—The shivering condition in which the accused made confession indicated that he was subjected to threat and torture before he was produced for recording the confession. His conviction though could be based on the retracted confession, even if it was uncorroborated, is illegal when it appears to be neither voluntary nor true. Sanwar Hossain vs State 45 DLR 489. Section 164—When an accused is under threat of being sent back to the police remand he is likely to make confession out of fear. His statement in such a position should not be considered as voluntary. Nazrul Islam vs State 45 DLR 142. Section 164-Previous statement, use of—The statement of a witness made u/s 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in Court (per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253. Section 164-If a statement recorded under this Section is true and voluntary, the same alone is sufficient for convicting the confessing accused. Retraction of confession is immaterial once it is found to be voluntary and true. Bakul Chandra Sarker vs State 45 DLR 260. Section 164-The Magistrate having not followed the requirement of law while recording the alleged confession of the accused and the columns were not properly filled in by him and as such, the genuineness of the confessional statement was rightly challenged. Belal alias Bellal vs State 54 DLR 80. Section 164—Copies of Section 164 CrPC statements cannot be granted to the accused before the filing of the charge-sheet. Mobarak Hossain alias Jewel vs State 54 DLR 135. Section 164-To allow an accused an access to documents like the statements under Section 164 of the Code, before filing charge-sheet, may prejudice the investigation before submission of the police report an accused is not entitled to get copies of the statements recorded under Section 164 of the Code. Mobarak Hossain alias Jewel vs State 54 DLR 135. Section 164-In the attending facts and circumstances of the case when the veracity of the confessional statement is questionable, the same enjoys no presumption of correctness under Section 80 of the Evidence Act. Belal alias Bellal vs State 54 DLR 80. Section 164-Established legal position is that statement under Section 164 CrPC can be used against its maker if it is found to be true, voluntary and inculpatory in nature—Statement under Section 164 CrPC cannot be used against any other co-accused without any corroborative evidence and circumstances. Zakir Hossain vs State 55 DLR 137. Section 164—Due to prayer for police remand with petition for recording statements under Section 164 CrPC and non asking of any question to the accused that if they confessed or not they would not be sent to the custody of police there will be no reasonable scope to presume that there will be apprehension and lingering fear in the minds of accused of what might happen to them in the event of their going back to police custody. Alam Kabiraj vs State 55 DLR 273. Section 164—Statement recorded behind the back of the accused the same cannot be treated as substantive evidence against him. Such statement can be used to corroborate or to contradict a statement made in the court in the manner provided in Sections 145 and 157 of the Evidence Act. Hobi Sheikh vs State 56 DLR 383. Section 164-A statement made by a witness under Section 164 CrPC can only be used by the accused for the purpose of cross examining in the manner provided by Section 145 of the Evidence Act. State vs Nazrul islam @ Nazrul 57 DLR 289. Section 164-The conviction on confession alone can be maintained if it is found inculpatory in nature, true and voluntary. Gour Chandra Pal vs State 59 DLR 17. Section 164—The confessional statement could not be said to be voluntary since it was recorded three days after the accused was arrested and certainly after illegal detention in police custody. State vs Md Roushan Mondal 59 DLR 72. Section 164—The Tribunal appears to have used 164 statement of PW 60 as a piece of evidence. This is a gross illegality. Such statement was recorded by the Magistrate behind the back of the accused persons, it can never be used as substantive evidence against them in any way. State vs Kajal Ahmed Jalali 59 DLR 345. Section 164—From the confession it transpires that accused Shahjahan made confessional statement being fully aware of its consequence and his repentance led him to make the confession as he killed the mother of his friend. Admittedly, police did not arrest accused Shahjahan who voluntarily surrendered and made the confession at the earliest possible time. During recording of the confessional statement accused Shahjahan did not complain of any torture by the police while in custody and the Magistrate also did not find any marks of assault on the person of accused Shahjahan and no such endorsement is found in Exhibit 6, confession. Shahjahan Ali (Md) @ Md Shahjahan vs State 59 DLR 396. Section 164-There is no earthly reason to disbelieve the statements of the victim which she also gave under Section 164 of the Code. It is also not acceptable to us why a minor girl would give her deposition and statement narrating the involvement of the appellant in such a manner as she has given, if there would have been no forceful abduction by the appellant and that if she went with him on her own. Monir Hossain vs State 59 DLR 416. Section 164-From the form of the recording statement, it is clear that the Magistrate did not state when she started recording the statement. How much time she allowed the accused for reflection. So, on scrutiny of the above confessional statement, it is difficult for us to hold that the same recorded in full compliance with the provision of 164(3) of the Code of Criminal Procedure and that the same is not voluntary and true. Bashar vs State 60 DLR 347. Sections 164 & 241A—To frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial Court is not obliged to consider the statements of any witness recorded under Section 164 CrPC. Forhad Hossain vs State 50 DLR 337. Sections 164 & 342—The witnesses deposed disclosing involvement of petitioner Mamun in the meeting of conspiracy and the occurrence of bomb blast resulting in the murder of the two Judges—In his examination under Section 342 CrPC he admitted to have committed the offence and he felt proud being able to kill the judges according to the premeditated plan of his leader—His confessional statement and admission before the Court coupled with evidence on record proved the case against him Per Amirul Kabir Chowdhury J dictating the Full Court Judgment. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36. Sections 164, 342 and 364—The Court is required to see not only that the forms under Sections 164 and 364 of the Code of Criminal Procedure were complied with but the substance underneath was equally adhered to. There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In the circumstances it is difficult to deny the accused an opportunity to cross-examine the Magistrate who allegedly recorded the statements. Sadeque @ Sadequr Rahman vs State 61 DLR 498. Sections 164 & 364-Presumption as to confession—Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the facts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under Sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to—There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD) 186. Sections 164 and 364-All the formalities in recording the confessional statement were observed. The magistrate recording the confessional statement was satisfied that the confession was voluntary and free from taint. Facts revealed in confession substantially corroborate the prosecution story. State vs Mizanul Islam 40 DLR 58. Sections 164 and 364-No hard and fast rule as to the time to be given to the accused for reflection before confession. Ratan Kha vs State 40 DLR 186. Sections 164 and 364—Confession— Statement not recorded in the language of the maker but in the language of the Magistrate—Accused admitted nothing. State vs Abdur Rashid 40 DLR (AD) 106. Sections 164 and 364-Giving of remand of the confessing accused after recording his confessional statements is against the principle of law and as such the prosecution cannot get any benefit out of the confessional statements. Shah Alam vs State 52 DLR 566. Sections 164 & 533—Confession—Noncompliance with provisions for recording confession, effect of—In a case of non-compliance with the provisions of Section 164 CrPC on material points, no question of any substantial compliance would arise. Certificate given by the Magistrate as to what had happened, how he warned, gave time for reflection, yet how the accused insisted on making the confessional statement ought to be treated as conclusive evidence of facts therein unless shown to be otherwise. Section 533 CrPC is the curable Section but it would not cure a non-compliance if the error had injured the accused in the defence on merits. Thus, when the statements were not even’ read out to him or could not possibly be read over to him for him to admit or to deny or to examine its correctness or not even shown to him and signed by him, specially when the said are made against his interest and would be used against him, it could not be said that the said would be cured under Section 533 CrPC. Abdul Hakim vs State 43 DLR 291. Sections 164 and 537—The recording Magistrate did not make any genuine effort to find out the real character of the confession. Omissions in the filling up of many paragraphs cast serious doubt upon the voluntary character of confessional statement. On a careful perusal of the confessional statement we are satisfied that the recording Magistrate did not make any genuine effort to find out the real character of the confession which he recorded. The omissions to fill up the above mentioned paragraphs are not mere omissions curable under Section 537 CrPC and the manner in which the confession was recorded casts serious doubt as to the voluntary character of the statement. Azad Shaikh vs State 41 DLR 62. Sections 164 & 374—Part of the confessional statement found true may be accepted by the Court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted. Learned Sessions Judge could reject a part of the confessional statement if he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court fmds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121. Sections 164,342 & 537—Since the attention of the accused was not drawn to his confessional statement when he was examined under Section 342, he is obviously prejudiced. Such defect is not curable under Section 537 of the Code. Abu Jamal vs State 51 DLR 57. Section 164-The allegation has also been brought for misuse the privilege of ad-interim bail because the accused petitioner use to threaten the victim over telephone to withdraw the case which is enough to prove the misuse the privileges of bail at this stage. Masud Mahiuddin vs State, 64 DLR 145 Section 164-In lodging the FIR and handing over the convict after 27 hours of his arrest when the police station is only half kilometer away from the place of occurrence, creates reasonable doubt about the veracity of the prosecution case and manipulation of the prosecution case cannot be ruled out particularly in view of the evidence adduced by the defence witnesses. Dolon vs State, 64 DLR 501 Section 164- The convict was present at the time of occurrence and took part in the killing of the victim by standing guard while, according to him, other accused persons killed the victim. He not only stood guard but also took part in the jubilation along with all the other assailants. It. therefore, cannot be said that the confes- sion was exculpatory, or that the common intention to kill the victim was absent in the case of the petitioner. Mishon Chandra Das vs State, 68 DLR (AD) 392 Section 164-A confession made by an accused in connection with another case is found to be relevant in connection with other case and if the offences committed in course of the same transaction and if the confession has been duly recorded in accordance with law. Secondary evidence after fulfillment of the requirements of Section 66 may be adduced to prove the confession and if the person making the confession is accused in both or all the incidents of commission of offences. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Sections 164 and 342-Second confessional statement of Shahid though has been accepted by the Adalat and also the High Court Division as voluntary and true, we are unable to accept this second confessional statement of Shahid as voluntary and true. Accused Shahid, imme diately after making of second confessional statement, filed application retracting the second confessional statement and also stating that what he stated in his Ist confessional statement was true. During trial of the case the accused Shahid, in his 342 statement, again disowned second confessional statement stating to the effect that he alone murdered Shajneen and no other accused person was involved in that occurrence. Syed Sajjad Mainuddin Hasan @Hasan vs State, 70 DLR (AD) 70 Section 164(3)- From the form on which the confessional statement was recorded, it appears that accused Bhola and Jahangir were kept in the custody of police personnel before recording their state- ments. Hence, it could be said that these two accused persons were still under apprehension of threat from the police, especially since they had been produced from police custody where they had spent time on remand ordered by the Court. The judicial confessions were rightly left out of consideration by the High Court Division. Sikha Rakshit vs Paritosh Rakshit, 70 DLR (AD) 1 Section 164(3)-No doubt, non- compliance of the vital procedures vitiated the confessional statement and, as such, the same can not be treated as a valid piece of evidence either to convict its maker or to corroborate any other evidence. Chunnu vs State, 65 DLR 127 Section 164(3) Once a confessional statement is taken to be voluntary and true, belated retraction has no value. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386 Section 164(3)-Retraction of a confession has no bearing whatsoever if it was voluntarily made so far the maker is concerned. It is, however, very weak type of a fact like any other fact and it cannot be the basis for conviction of co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6 Section 164(3)- If the confessional statement is found true and voluntary, it can form the basis for conviction even if retracted so far the maker is concerned but it cannot be used against co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader@ Mobile Kader, 67 DLR (AD) 6 Section 164(3)-Whenever it is noticed that, all the legal mandatory formalities in recording the confessional statement are duly observed and the Magistrate who recorded the confessional statement is satisfied that the confession is voluntary and free from all taint in that case, such confession can be the sole basis of conviction of the confessing accused. State vs Md Sukur Ali, 68 DLR 155 Section 164(3) There was no earthly reason to make any untrue statement on the part of the witnesses, or to publish false news in all the electronics and print media together. The condemned prisoner, made confessional statements, which also prove countless blows on the victim. State Md Rafiqul Islam alias Shakil, 70 DLR 26 Sections 164(3) and 342-Shahid in his 342 statement, evidently tried to conceal the fact of rape though in his own carlier two confessional statements he narrated elaborately how he caused rape to victim Shajneen. Considering the evidence including the own confessional statements of Shahid both the tribunal and the High Court Division did not give any reliance on the very belated statement of Shahid which he made under Section 342 of the Code and rightly found that victim Shajneen was raped before murder. Syed Sajjad Main- uddin Hasan Hasan vs State, 70 DLR (AD) 70 Sections 164(3) and 364-One of the essential elements of any confessional statement is that it must be voluntary. In order to gauge that the statement is voluntary, the Magistrate must ensure that the confessing accused is free from any fear and that he is making his statement without any inducement or duress. It is, therefore, important that the Magistrate ensures that there is no police presence, which might act as a threat or perceived threat to the confessing accused. Sikha Rakshit va Paritosh Rakshit. 70 DLR (AD) 1 Sections 164 & 364—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under Sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das vs State 51 DLR 466. Sections 164 & 533—The recording of the statement on a foolscap paper and mere omission of endorsement cannot be considered as fatal defect. The breach of the provision of law, if any, is a technical one and by that the evidentiary value of the confessional statement cannot be blown away. The defect is very much curable under Section 533 of the Code of Criminal Procedure. Syed Ahmed vs Abdul Khaleque 51 DLR 43. Section 164(2)—The act of recording confession is a very solemn act and in discharging his duties, the Magistrate must take care to see that the requirements of sub-Section (2) of Section 164 are fully satisfied. State vs Babul Miah 63 DLR (AD) 10. Section 164(3)—It is a mandatory requirement that after recording a confessional statement the recording Magistrate is required to make a memorandum to the confession containing a clause to the effect that he had warned the accused that he was no bound to make a confession, that if he makes a confession, it would be used against him, that the statement was true and voluntary, that it was recorded as per version of the maker and that it was read over to the maker after his statement was recorded which was the true and correct version and it contained a full and true account of statement made by the maker. State vs Babul Miah 63 DLR (AD) 10. Section 164(3)—It does not appear sufficient questions were put and made understandable to the accused in their own language and proper time for reflection was not given—hence their confessions cannot be deemed to be voluntary or true. State vs Raja Abdul Majid 48 DLR 336. Section 164(3)-Mere absence of LTI on a particular sheet (though the LTI is available on every sheet except one) and on the face of mentioning of relevant questions before recording the confessional statement informing about the consequence of such confessional statement to the confessing accused the confessional statement Exhibit4 is quite admissible in evidence. Abul Kalam Mollah vs State 51 DLR 544. Section 164(3)—The provisions of sub Section (3) of Section 164 is mandatory and therefore he is required to fill up Column 7 of the form for recording confession which is a column for recording a brief statement of the Magistrate’s reason for believing that the statement was voluntarily made. State vs Babul Miah 63 DLR (AD) 10. Section 164(3)—The confessional statement is not true and voluntary and there is no other direct or circumstantial evidence to substantiate the same, rather the prosecution particularly PW 5 Ohid Miah the alleged eye-witness embellished the prosecution story, the conviction cannot be sustained. Nuru Miah vs State 63 DLR 242. Sections 164(3) & 364—The provisions under these two Sections are mandatory and required to be strictly followed to make the confession voluntary and true and fit for reliance for convicting the accused on his confession. Abdul Hossain vs State 46 DLR 77. Sections 164(3) and 364—Section 164(3) a mandatory provision of law. The requirement of adherence to the provisions of Section 164(3) CrPC is not a mere matter of form but of substance that has to be complied with—Viewed in the light of the principles indicated above we have no hesitation to hold that the recording of the confessional statement Ext. 5(c) was not done in compliance with the requirement of sub-Section (3) of Section 164 read with Section 364 of the Code of Criminal Procedure. Azad Shaikh vs State 41 DLR 62. Section 164(3)-Corroborative evidence— For corroborative evidence, the Court must look at the broad spectrum of the approver’s version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration will depend upon the facts and circumstances of each case. Corroboration need not be in the form of ocular testimony of the witnesses and may even be in the form of circumstantial evidence. State vs Md Faziur Rahman Tonmoy 61 DLR 169. Section 164(3)—In the absence of any evidence concerning the direct participation of Moti in the planning of the occurrence, it is difficult to hold that he had ‘mens rea’ in the commission of the offence. The confessional statement of the accused dated 21-4-1993 (Exhibit 6) does not indicate that the confession-recording Magistrate complied with the mandatory provision of sub-Section (3) of Section 164 of the Code. State vs Md Faziur Rahman Tonmoy 61 DLR 169. Section 164(3)—The requirement of adherence to the provisions of Section 164(3) of the Code of Criminal Procedure is not a mere matter of form, but substance. Section 164(3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed vs King Emperor, AIR 1936 PC 253 Before recording a confession a Magistrate is bound to make real and substantial inquiry as to the voluntariness of the confession. In so doing he must put questions to the accused with a view to find out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by somebody or whether it has been caused by any inducement, threat or promise. A confessional statement, even if it is partly true or partly false or, in other words, does not disclose the full picture, can be used against the maker and there is no legal bar in upholding the conviction on the basis of such confession. State vs Suman Saha 61 DLR 253. Sections 164(3) & 553—Procedure mandatory in nature—It is ex facie clear from the Exhibit 7 that the confession-recording Magistrate has not explained to the accused Tonmoy that he is not bound to make any confession and if he does so, it may be used as evidence against him. This is a very vital question to be explained by the confession-making accused. The provision of subSection (3) of Section 164 of the Code is mandatory in nature. It appears from column 6 of the Exhibit 7 that the Magistrate put a question to the accused Tonmoy as to whether he is making the confession voluntarily and he has replied in the affirmative. But the non-putting of any question to the effect that the accused Tonmoy is not bound to make any confession and if he does so, it may be used as evidence against him at the trial has rendered the confession involuntary, invalid and unreliable, though it purports to be inculpatory in nature and may be true in some respects. State vs Md Faziur Rahman Tonmoy 61 DLR 169. Sections 165 & 166(3)—The position of search by police officers of a different jurisdiction has been spelt out in Section 166(3) of the Code of Criminal Procedure according to which a police officer is entitled to conduct search within the jurisdiction of another police station, if he has reason to believe that in having the place searched by the police of that place a delay would be accused and as a result evidence would be destroyed. In such a case presumption of regularity of official acts will be invoked otherwise the purpose of the Section will be defeated. If a police officer conducts a search within the limit of another police station, it may be presumed, unless otherwise proved, that reasons have been recorded by that officer that delay would have occasioned and evidence destroyed, if he had waited to have the place searched by police having jurisdiction of the place. Kamruzzaman alias Babul Sikdar vs State 47 DLR 416. Section 164(3)-When the voluntary character of the confession and truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. A confession may form the legal basis of conviction if the court is satisfied that it was true and was voluntarily made. Aziz @ Azizul @ Azid vs State (Criminal), 73 DLR (AD) 365 Section 164(3)-If the confessional statement of the appellant made under Section 164 of the Code is considered in conjunction with other evidence on record then it cannot be said that his confessional statement is true and voluntary. Shafiqul Islam vs State (Criminal), 73 DLR (AD) 189 Sections 164(3) and 342-If the appellant's age is below 16 years at the time of framing charge his trial is vitiated by the provisions of Children Act, 1974. Shafiqul Islam vs State (Criminal), 73 DLR (AD) 189 S. 164-If we accept the explanation of the learned Judge then it is clear that he refrained himself to perform his judicial task under so called pressure and he failed to over come the situation as a Judge. Nur Hossain alias Ladu Vs. State, 18 BLC (2013)-HCD-474. S. 164-Confessional Statement-The confessional statement as has been recorded is not in the verbatim statement of the accused. The statement was recorded by the Magistrate alter gathering the facts on question and answer from the accused. Ishaque Ali Vs. State, 18 BLC (2013)-HCD-453. S. 164(3-No doubt, non-compliance of the vital procedures vitiated the confessional statement and, as such, the same can not be treated as a valid piece of evidence either to convict its maker or to corroborate any other evidence. Chunnu Vs. State, 65 DLR (2013)-HCD-127. S. 164, Confessional Statement. It is true that we have decision of our coun that a confessional statement can be accepted even in the absence of recording Magistrate. But it is by now settled that when any doubt arises as to the circumstances and nature of recording the confessional statements, the Magistrate concerned should be produced before the Court, otherwise the accused will be prejudiced... (29) The State V. Abdul Karim, 3 TLR (1013)- Page 197 S. 164-In this confessional statement the accused respondent allegedly admitted that as per pressure of Dhan Miah he pressed the legs of the deceased. This statement does not support the story introduced by P.Ws.4, 6 and 7. Therefore we find that there are two versions regarding the admission of the accused respondent as regards his participation in the killing of Dhan Miah. Under such circumstances, it is difficult to arrive at a conclusion that this statement is true and voluntary and to act upon it. Therefore, the learned Judges of the High Court Division are perfectly justified in taking the exculpatory portion of the confession is true and accordingly disbelieved it as not voluntarily made... (18) The State Vs. Babul Miah, 3 TLR (2013)-Page-307. S. 164-Mr. Sharwardhi, Ieamed Deputy Attorney General, appearing on behalf of the leave petitioner, submits that the accused-respondent having been released on bail granted by the High Court Division misued the privilege of bail by giving death threats to the informant and as such, the learned Additional Sessions Judge rightly cancelled the bail of the accused-respondent on relying upon a G.D. Entry made in that regard and as such, the High Court Division should have discharged the Rule...(9) The State Vs. Mahmud Hassan alias Roni, 10 ADC (2013)-Page 706. S. 164-Confessional statement under Section 164: It appears from the last portion of the confessional statement that the Magistrate obtained the story by way of question and answer from the accused, which has been subsequently written by the Magistrate on his own language and as such the confessional statement was not written in the verbatim of the accused...(Para-28). Md. Ishaque Vs. The State, I Counsel (2013)-HCD-83 Section-164 The victim made a statement under Section 164 of the Code of Criminal Procedure admitting that she voluntarily eloped with the accused Anowar and married him, her consent carries no value, inasmuch as, she was a minor girl. The High Court Division was correct in holding such view. A minor's consent is no con-sent in the eye of law. Since the victim was found minor on the day of occurrence, even if it is taken that she eloped with the accused Anowar...... Hannan & others =VS= The State, [1 LM (AD) 585] Section 164- Confession It is now well settled that as against the maker himself his confession, judicial ог extrajudicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. (Per Md. Tafazzul Islam, J)....Major Md. Bazlul Huda(Artillery)=VS=The State(Banga Bandhu Murder Case), [9 LM (AD) 386] Section 164 Confessional statement- When a Magistrate records confessional statement of an accused under Section 164 of the Code of Criminal Procedure he must observe some legal formalities (i) he must give statutory warning and caution the accused that he is not bound to make a confession; (ii) the Magistrate must be satisfied on questioning the accused that the statement has been made voluntarily. After completion of recording the statement, the Magistrate must add a memorandum at the end of the confession relating to his action. If the Magistrate observes all the legal formalities in recording the confessional statement of an accused generally the confession should be treated as voluntary and true. The prosecution has been able to prove the case beyond reasonable doubt that both the appellants murdered the deceased victims Sakina and Sohel and, therefore, we find no wrong or illegality at the finding of the High Court Division to convict the appellants for murdering Sakina and Sohel and sentencing them to death based on judicial confession. As such, the conviction and sentence passed by the High Court Division in respect of the appellants does not suffer from any kind of legal infirmities, thus it does not call for interference by this Division. We are of the view that justice would be sufficiently met, if the sentence of death of the appellants be commuted to one of imprisonment for life. ...Abdul Mannan (Md.) VS The State, [10 LM (AD) 223] A Section 164 Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act; but the Section does not say that confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. There Lordships think that the view which has prevailed in most Courts in India, namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of conviction, is correct.... Alamgir Hossain =VS= The State, [10 LM (AD) 466] Section 167 S. 167(2)-The object of requiring an accused to be produced before a Magistrate is to be enable him to see that remand is necessary and also to enable the accused to make any representation he may wish to make. State Vs. Md. Aman Ullah Aman (Criminal), 18 BLC (2013)-AD-81. Ss. 167 and 561 A-Code of Criminal Procedure authorized a Magistrate to pass appropriate order had respect of a person who is suspected to have been involved in a cognizable offence and produced before him by the police, the High Court Division seized the proceedings of the case as a court of original jurisdiction by exercising extra ordinary powers. State Vs. Md. Aman Ullah Aman, 18 BLC (2013)-AD-31. S. 167(5), 173(3)(b) and 561A-There is no legal bar for holding further investigation under Section 173(3xb) of the Code of Criminal Procedure. The period elapsed owing to the pendency of the several legal proceeding initiated by moth the parties should not be counted under Section 167(5) of the Code. Abdul Hakim Vs, The State, 2 LNJ (2013)-HCD-309. Section 167-It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer. Government of Bangladesh vs Mahmudur Rahman, 68 DLR (AD) 373 Section 167-The longest period for which an accused can be ordered to be detained in police custody by one or more such orders is only 15 days. Where even within the 15 days time allowed under this Section the investigation is not completed, the police may release the accused under Section 169. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST. 69 DLR (4D)63 Sections 167 and 169-Since a remand order is judicial order, the Magistrate has to exercise this power in accordance with the well settled norms of making a judicial order. The norms are that he is to see as to whether there is report of cogni zable offence and whether there are allegations constituting the offence which is cognizable. Non-disclosure of the grounds of satisfaction by a police officer should not be accepted. Whenever, a person is arrested by a police during investigation he is required to ascertain his complicity in respect of an cognizable offence. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63 Sections 167, 169, 170 and 173- The word "accused" used in Section 167 and in Sections 169, 170 and 173 of the Code denote the suspected offender who has not yet come under the cognizance of court. It does not rest in the discretion of the police officer to keep such person in custody where and as long as he pleases. Under no circumstances, can he be retained for more than 24 hours without the special leave of the Magistrate. Any longer detention is absolutely unlawful. The accused should actually be sent before the Magistrate; the police cannot have the accused in their custody and merely write for and obtain the special leave for such detention. Bangla desh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63 Section 167(1)- Diary should contain full unabridged statement of persons examined by the police so as to give the Magistrate a satisfactory and complete source of information which would enable him to decide whether or not the accused person should be detained in custody. Section 167(1) requires that copies of entries of the diary should be sent to the Magistrate with the object to prevent any abuse of power by the police officer. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST, 69 DLR (AD) 63 Section 167(2)- If the trial of an offence commences in the court of sessions, the Magistrate does not possess any power to remiand an accused person. It is the trial court which will pass necessary orders if it thinks fit. But before the trial commences and after expiry of fifteen days time provided in sub-Section (2) of Section 167, the law does not permit the Magistrate to direct a suspected accused person to be detained in judicial custody. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63 Section 167(2)- A Magistrate/Judge having power to take cognizance of an offence has no power to direct the detention of an accused person in the judicial custody, if he thinks fit, beyond a period of fifteen days from the date of production in court after arrest by a police officer in respect of a cognizable offence. The Code is totally silent to deal with an accused person who is allegedly involved in a cognizable offence if the police officer fails to conclude the investigation of the case within this period. If the Magistrate has no power to direct such accused person to be detained in judicial custody, he will be left with no option other than to release him on bail till the date of submission of police report. Normally in most cases the police officers cannot complete the investigation within the stipulated period sanctioned by law and normally they take years together. Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs vs BLAST. 69 DLR (AD) 63 Section 167(5)- Exclusion of period does not cure the legal consequences that had already crept in after the lapse of 60 days. Sohrab Ali Dewan vs State, 64 DLR 106 Section 167(5)- The expiry of the 60 days time limit went on unnoticed by the Magistrate. The investigating offence first brought the necessity for extension of the time limit after 3 months and 26 days and after expiry of the 60 days time limit. But the Magistrate had no legal authority to extend the time limit. Extension could be allowed on the last date of expiry or before that. The extension allowed was no extension in the eye of law. Sohrab All Dewan vs State, 64 DLR 106 S. 167-In a given case, an accused is required to be interrogated by the police or that the investigating officer shall be authorized to take the accused in his custody for interrogation can only be decided by a Magistrate on perusal the entries in the dairy under Section 167(2). The satisfaction in this regard is that of the learned Magistrate. This satisfaction cannot be replaced by that of the High Court Division ......(6) The State Vs. Md. Aman Ullah Aman (Criminal), 10 ADC (2013)-Page 447. See 18 BLC (2013)-AD-81. Section 167—Order of remand—Its validity—The word ‘forward’ used in Section 167 CrPC means ‘act of sending’. Unless the accused is sent to the Magistrate and the Magistrate passing the order of remand without the accused being forwarded to him, the legal requirement is not complied with for the Magistrate to assume jurisdiction to pass the order of remand. The accused must be brought before the Magistrate prior to passing of an order of remand, no matter whether the accused is in police lockup or judicial custody. Aftabur Rahman vs State 45 DLR 593. Section 167—Law did not provide for automatic stopping of further investigation and release of the accused after expiry of the time limit nor for stopping proceedings by the Sessions Judge or Special Tribunal on such ground. Niamatullah @ Chand (Md) vs State 48 DLR 148. Section 167—The provisions of Section 167 CrPC being a procedural law, there being no express provisions for its prospective operation, shall operate retrospectively. AKM Azizul Islam vs State 9DLR (AD) 115. Section 167—While producing a person arrested without warrant before the Magistrate, the police officer must state the reasons why the investigation could not be completed within 24 hours and what are the grounds for believing that the information received against him is well- founded. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363. Section 167—The order for detaining in police custody is passed by a Magistrate in exercise of the power given to him under subSection (2) of this Section. If the requirements of sub-Section (1) are not fulfilled, the Magistrate cannot pass an order under sub-Section (2) for detaining a person even in jail not to speak of detention in police custody. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363. Section 167—Though the provisions empower the Magistrate to authorise the detention in police custody, no guideline has been given in sub-Sections (2) and (3) as to the circumstances under which detention in police custody may be authorised. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363. Section 167—Entries in the Diary—It is for the Magistrate to decide on certain materials placed before him such as the material contained in the diary relating to the case whether or not the detention of the accused was necessary. In coming to the conclusion the Magistrate has to exercise his judicial mind and only when the Magistrate did apply such a mind, it could be said that the order made for detention is a valid order. Saifuzzaman vs State 56 DLR 324. Section 167—Remand order should be made in presence of the accused in view of the expression “forwarded” used in sub-Section (2) of Section 167 of the Code. Saifuzzaman (Md) vs State 56 DLR 324. Sections 167 & 61—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 and 4 (four) others vs State 49 DLR 47. Sections 167 & 173—Charge-sheet submitted not upon the revival of the case under Section 167 but following the further investigation under Section 173 CrPC—The power to make further investigation is available to the police if there has been no order under 167 CrPC stopping the proceeding and releasing the accused after the expiry of the period of investigation under the said Section. Shah Alam Chowdhury vs State 42 DLR (AD) 10. Order of remand without forwarding the accused magistrate-Whether unless the accused is sent to the Magistrate and the Magistrate passing the order of remand without the accused being forwarded to him, the legal requirement is not complied with. Aftabur Rahman alias Zangi Vs. The State, 13 BLD (HCD) 547 Ref: 34 DLR(AD) 222; (1969) Pakistan Criminal Law Journal 873; AIR 1935 Lahore 230; 1992 Pakistan Criminal Law Journal 985 Cited Sections 167, 173, 190 and 561A— Proceeding before a Court starts when the competent Court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the FIR has not submitted any charge-sheet. Rule for quashing the proceedings is liable to be discharged. Mokbul Hossain vs State 40 DLR 326. Sections 167 and 364—The statement of the condemned-prisoner having been recorded on the same day after giving him only one hour for reflection of mind and with no assurance that he would not be sent back to police custody, all create a serious doubt as to the true nature of the confessional statement. State vs Harish 54 DLR 473. Sections 167, 339C and 494-Children are entitled to trial before the Juvenile Courts and positive step should have been made to make their trial in accordance with law of Juvenile Court, not to be tried jointly with the adults. The respondents are directed to comply with the earlier direction and report compliance within six months from date. Bangladesh Legal Aid and Services Trust vs Bangladesh 57 DLR 11. Section 167(5)—The accused-petitioner did not stand released under Section 167(5) on stopping further investigation on the ground of expiry of the limitation of specified or extended period of investigation—Charge-sheet validly submitted in accordance with law. Shah Alam Chowdhuiy vs State 42 DLR 49. Section 167(5)-Stopping of investigation being subject to order of Sessions Judge, no absolute right, not to speak of any vested right of release, could be created in favour of the accused with the passing of order stopping further investigation by the Magistrate on the expiry of specified or extended time for investigation. In the case of Mohitullah vs State reported in 38 DLR (AD) 240 it has been held that an accused would be tried in accordance with procedure prevailing on the day trial commenced and if the procedure is changed by the time trial commenced the accused cannot claim vested right to be tried in accordance with the provisions of the repealed procedure. It is well settled that procedural law takes effect retrospectively. In this connection reference nay be made to the case reported in (1994) 14 BLD (AD) 143 (State vs Ana Mia). Sultan Ahmed vs State 47 DLR 196. Section 167(5)—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 investigating within the specified period. Amalendu Mazumder vs State 49 DLR 204 Section 167(5)—In view of the proviso to this Section the period spent awaiting sanction of the government for prosecution of the accused should be added to the statutory period for submission of charge sheet. Saheb Ail Miah vs State 46 DLR 238. Section 167(5)-At a time when the report to prosecute the petitioner was submitted there was no provision in Section 167(5) of the Code of Criminal Procedure for stopping investigation of a case and releasing the accused because of non- completion of investigation within the statutory period and as such, the proceeding cannot be stopped and the accused cannot be released. Bimal Chandra Adhikari vs State 51 DLR 282. Section 167(5)—After the amendment of the provisions of sub-Section (5) of Section 167 of the Code in 1992 there is no scope of stopping the investigation on the ground of expiry of time limit specified for investigation. Nazrul Islam vs State 51 DLR 368. Sections 167(5) & 498—The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory—on the expiry of the period for investigation the accused cannot claim bail as a matter of right. Anwar Hossain (Md) vs State 48 DLR 276. Sections 167(5), 190(1) & 561A—Quashing of proceeding under Special Powers Act—In matters of cognizance of offence triable exclusively by the Special Tribunal under the Special Powers Act initial cognizance of offence by a Magistrate in the manner provided in the Code of Criminal Procedure has no application. In an application for quashment of proceeding on the ground of expiry of period of limitation for investigation, the provisions of Section 167(5) of the Code applies only to cases in which the Magistrate can take initial cognizance and does not apply to cases exclusively triable by the Tribunal. On this ground the application for quashing is summarily rejected. Mahbubur Rahman vs State 42 DLR 375. Section 167(6)-Sessions Judge’s power to direct further investigation—The power given to the Sessions Judge under Section 167 CrPC is retrospective in nature. He can extend the period of investigation for an indefinite period or direct further investigation from time to time as occasion requires. The legislature has not put any limitation on this power. Anwar Hossain Maji vs State 42 DLR 410. Section 167(7)—Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the Final Reported directed further investigation—Police on further investigation submitted charge-sheet for beyond the “specified period” of 60 days as stated in sec. 167(5) and also of 90 days as stated in Section 35(d) of the Transitory Provision—Charge-sheet was submitted one year after the Magistrate’s order for further investigation—Accused respondents, whether entitled to be released—Provision in Section 35(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the police submitted charge-sheet, not governed by Section 167, and the charge-sheet not hit by Section 167(7)—Consequently the charge- sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116. Section 167(5)&(7)— Investigation of a case being matter of procedure no vested right accrued in favour of the accused. So, expiry of the time for completion of investigation cannot stop further investigation and release the accused from custody. Kitab Ali Sikdar vs State 47 DLR 509. Section 167(7A), Proviso and 173(3B)— Revival of the investigation of a Sessions triable case beyond the period of six months of the discharge of the accused-petitioner on submission of final report. The Police validly and legally further investigated into the case under the provisions of sub-Section (3B) of Section 173 CrPC with the usual leave of the Chief Metropolitan Magistrate, Dhaka from 14-7-88 as the order dated 6-9-87 duly passed by the Chief Metropolitan Magistrate under Section 1 67(7A) CrPC reviving the case for investigation by the Police continued to be fully operative under the law and the Police, therefore, validly submitted charge-sheet No. 196 dated 25-8-88 in accordance with law and the Learned Sessions Judge, Dhaka has also validly taken cognizance of this offence against the accused persons. Shah Alam Chowdhury vs State 42 DLR 49. Section 167(7), (7A)—Revival of a case after order of stopping investigation and release of the accused whether valid: Nowhere in the two subSections or the proviso it has been indicated that for revival of investigation stopped by the Chief Metropolitan Magistrate the revival within 6 months could not be made by him. In the present case the Chief Metropolitan Magistrate exercised his power to stop the proceeding under subSection (7) but he exercised a different power that was provided by sub-Section (7A) for revival of the proceeding. It cannot therefore be said that he exhausted his jurisdiction after the exercise of power to stop proceedings and became functus officio. Md Arab All vs State 42 DLR 524. Section 167(7A)—Whether Additional District Magistrate is not included within the term “District Magistrate” as contended by the petitioners’ Advocate. Faziul Hoque vs State 41 DLR 477. Section 167(7A)—Prosecution had no alternative but to approach the District Magistrate for revival of the case under the now repealed provision of sub-Section (7A) of Section 167 of the Code as no other higher authority was mentioned in the said provisions. Niamatullah @ Chand (Md) vs State 48 DLR (Criminal) 148. Section 167 (7A)—Ministry of Establishment’s Notification bearing No. MF/JAIII/ VEST/84-377 dated Dhaka 17-10-84 vested all powers of District Magistrate in Additional District Magistrates. Fazlul Hoque vs State 41 DLR 477. Sections 167(7A) & 339C—On a plain reading of the provision of Section 339C the District Magistrate’s authority and jurisdiction arises to revive the case under Section 167(7A) on and from the date on which the order of stopping investigation and release of the accused persons is actually passed and not from the date when such order of stopping proceeding and release of the accused should have been passed or deemed to have been passed. Hamizuddin vs State 40 DLR 287. Section 167- Shown arrest Writ petitioner has been shown arrested in a good number of cases and some of the order sheets have been placed before this court. On perusal of the order sheets. We have noticed that the police officers have not complied with the provisions of Section 167 of the Code of Criminal Procedure while praying for showing him arrested and repeatedly made petitions showing him arrested in many cases and the Magistrate passed mechanical orders applications. It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer. Government of Bangladesh & others =VS= Mahmudur Rahman & another, [1 LM (AD) 100] Section 167(1)- Section 167(1) of the Code provides that whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police-station or the police- officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has no jurisdiction to try the case from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Government shall authorize detention in the custody of the police. (3) A Magistrate authorizing under this Section detention in the custody of the police shall record his reasons for so doing. (4) If such order is given by a Magistrate other than the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, he shall forward a copy of his order, with his reasons for making it to the Chief Metropolitan Magistrate or to the Chief Judicial Magistrate to whom he is subordinate. (4A) If such order is given by a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, he shall forward a copy of his order, with reasons for making it to the Chief Metropolitan Sessions Judge or to the Sessions Judge to whom he is subordinate. (5) If the investigation is not concluded within one hundred and twenty days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation- (a) the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence to which the investigation relates is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Magistrate; and (b) the Court of Session may, if the offence to which the investigation relates is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Court: Provided that if an accused is not released on bail under this sub-Section, the Magistrate or, as the case may be, the Court of Session shall record the reasons for it: Provided further that in cases in which sanction of appropriate authority is required to be obtained under the provisions of the relevant law for prosecution of the accused, the time taken for obtaining such sanction shall be excluded from the period specified in this sub-Section. Explanation-The time taken for obtaining sanction shall commence from the day the case, with all necessary documents, is submitted for consideration of the appropriate authority and be deemed to end on the day of the receipt of the sanction order of the authority.] (6)-(7A) [Omitted by Section 2 of the Criminal Procedure (Second Amendment) Act, 1992 (Act No. XLII of 1992).] (8) The provisions of sub-Section (5) shall not apply to the investigation of an offence under Section 400 or Section 401 of the Penal Code, 1860 (Act XLV of 1860).]......Ministry of Law, Justice & Parl Afrs. =VS BLAST. [3 LM (AD) 274] Section 167, 169, 170 and 173- Accused The word "accused" used in Section 167 and in Sections 169, 170 and 173 of the Code denote the suspected offender who has not yet come under the cognizance of court. It does not rest in the discretion of the Police-officer to keep such person in custody where and as long as he pleases. Under no circumstances, can he be retained for more than 24 hours without the special leave of the Magistrate under this Section. Any longer detention is absolutely unlawful. The accused should actually be sent before the Magistrate; the police cannot have the accused in their custody and merely write for and obtain the special leave under this Section for such detention. .....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274] Section 167- The Magistrate exercising his jurisdiction under Section 167 performs judicial functions and not executive power, and therefore, the Magistrate should not make any order on the asking of the police officer. The object of requiring an accused to be produced before a Magistrate is to enable him to see that a police remand or a judicial remand is necessary and also to enable the accused to make a representation he may wish to make. Since a remand order is judicial order, the Magistrate has to exercise this power in accordance with the well settled norms of making a judicial order. The norms are that he is to see as to whether there is report of cognizable offence and whether there are allegations constituting the offence which is cognizable. Non- disclosure of the grounds of satisfaction by a police officer should not be accepted. Whenever, a person is arrested by a police during investigation he is required to ascertain his complicity in respect of an cognizable offence......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274] Section 167 and Section 61- Section 167 is supplementary to Section 61 of the Code. These provisions have been provided with the object to see that the arrested person is brought before a Magistrate within least possible delay in order to enable him to judge if such person has to be kept further in the police custody and also to enable such person to make representation in the matter. The Section refers to the transmission of the case diary to the Magistrate along with the arrested person. The object of the production of the arrested person with a copy of the diary before a Magistrate within 24 hours fixed by Section 61 when investigation cannot be completed within such period so that the Magistrate can take further course of action as contemplated under sub-Section (2) of Section 167. Secondly, the Magistrate is to see whether or not the arrest of the accused person has been made on the basis of a reasonable or complaint information has been received credible or a reasonable suspicion exist of the arrested persons having been concerned in any cognizable offence. Therefore, while making an order under sub-Section (2) the Magistrate must be satisfied with the requirements of Sections 54 and 61 have been complied with otherwise the Magistrate is not bound to forward the accused either in the judicial custody or in the police custody. Ministry of Law. Justice & Parl. Afrs, VS BLAST. [3 LM (AD) 274] Sections 167, 54- Guidelines to be followed law enforcing- responsibilities of the 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. .....Ministry of Law, Justice & Parl. Afrs. VS BLAST, [3 LM (AD) 274] Section 167- Responsibilities of Law Enforcing Agencies- (1) Law enforcement agencies shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. (II)In the performance of their duty, law enforcement agencies shall respect and protect human dignity and maintain and uphold the human rights of all persons. (III) Law enforcement agencies may use force only when strictly necessary and to the extent required for the performance of their duty. (IV) No law enforcement agencies shall inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor shall any law enforcement agencies invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment. (V) The law enforcing agencies must not only respect but also protect the rights guaranteed to each citizen by the constitution. (VI) Human life being the most precious resource, the law enforcing agencies will place its highest priority on the protection of human life and dignity. (VII) The Primary mission of the law enforcing agencies being the prevention of crime, it is better to prevent a crime than to the resources into motion after a crime has been committed. Ministry of Law, Justice & Parl. Afrs. -VS- BLAST, [3 LM (AD) 274] Sections 167(1)/(2) & 54- Guide lines for the Law Enforcement Agencies- (i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum. (ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and the place in custody. (iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcing officer to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is staying. (iv) Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the law enforcing officer's custody or in the judicial custody under Section 167(2) of the Code. v) No law enforcing officer shall arrest a person under Section 54 of the Code for the purpose of detaining him under Section 3 of the Special Powers Act, 1974. (vi) A law enforcing officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest. (vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor. (viii) If the person is not arrested from his residence or place of business, the law enforcing officer shall inform the nearest relation of the person in writing within 12 (twelve) hours of bringing the arrestee in the police station. (ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation. (x) When any person is produced before the nearest Magistrate under Section 61 of the Code, the law enforcing officer shall state in his forwarding letter under Section 167(1) of the Code as to why the investigation cannot be completed within twenty four hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary B.P.Form 38 to the Magistrate. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] Sections 167(2) and 169 Guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of an offence- (a)If a person is produced by the law enforcing agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per Section 167(2) of the Code, the Magistrate or the Court, Tribunal, as the case may be, shall release him in accordance with Section 169 of the Code on taking a bond from him. (b)If a law enforcing officer seeks an arrested person to be shown arrested in a particular case, who is already in custody. such Magistrate or Judge or Tribunal shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case and if that the prayer for shown arrested is not well founded and baseless, he shall reject the prayer. (c)On the fulfillment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person as required under Section 167(2) and if the case is exclusively triable by a court of Sessions or Tribunal, the Magistrate may send such accused person on remand under Section 344 of the Code for a term not exceeding 15 days at a time. (d)If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above. (e) The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report disclose that the arrest has been made for the purpose of putting the arrestee in the preventive detention. (f)It shall be the duty of the Magistrate/Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under Section 167 of the Code. (g)If the Magistrate has reason to believe that any member of law enforcing agency or any officer who has legal authority to commit a person in confinement has acted contrary to law the Magistrate shall proceed against such officer under Section 220 of the Penal Code. (h)Whenever a law enforcing officer takes an accused person in his custody on remand, it is his responsibility to produce such accused person in court upon expiry of the period of remand and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct for the examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhumation of the dead body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under Section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place. (i)If there are materials or information to a Magistrate that a person has been subjected to 'Nirjatan' or died in custody within the meaning of Section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of 'Nirjatan' and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-moto under Section 190(1)(c) of the Code without awaiting the filing of a case under Sections 4 and 5 and proceed in accordance with law....... Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274] Section 167(3)- Sub-Section (3) of Section 167 requires that when the Magistrate authorises detention in police custody, he should record his reasons for so doing. The object of this provision is to see that the Magistrate takes the trouble to study the police diaries and to ascertain the actual conditions under which such detention is asked for. The law is jealous of the liberty of the subject and does not allow detention unless there is a legal sanction for it. So in every case where a detention in police custody is ordered the Magistrate should state his reasons clearly. He should satisfy himself (a) that the accusation is well-founded, and (b) that the presence of the accused is necessary while the police investigation is being held. The mere fact that the police state that the presence of the accused is necessary to finish the investigation, is not sufficient to order detention. To order a detention of the accused in order to get from him a confessional statement or that he may be forced to give a clue to stolen property is not justified. Similarly it is improper to order detention in police custody on a mere expectation that time will show his guilt or for the reason that the accused promised to tell the truth or for verifying a confession recorded under Section 164 or for the reason that though repeatedly asked the accused will not give any clue to the property...... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST. [3 LM (AD) 274] Section 169 Section 169- The entries in the diary afford to the Magistrate the information upon which he can decide whether or not he should authorise the detention of the accused person in custody or upon which he can form an opinion as to whether or not further detention is necessary. The longest period for which an accused can be ordered to be detained in police custody by one or more such orders is only 15 days. Where even within the 15 days time allowed under this Section the investigation is not completed, the police may release the accused under Section 169...... Ministry of Law, Justice & Parl. Afrs. -VS- BLAST. [3 LM (AD) 274] Section 169—Section 169 of the Code of has not given the Police Officer any power to judge the credibility of the witnesses and to decide the defence plea of alibi. Abdur Rouf vs Jalaluddin 51 DLR (AD) 22. Sections 169, 202(1), (2B)—Interpretation of statute—Whether order of discharge of the accused by the Magistrate on receipt of final report (true) is in a way like releasing the accused by the Investigating Officer under Section 169 CrPC on the ground of deficiency of evidence. Shah Alam Chowdhury vs State 42 DLR 49. Section 171 Section 171(1)(2)—The police officer who has investigated the case shall be responsible for the attendance of witnesses at the trial. Daily Star and Protham Alo Patrika vs State 53 DLR 155. Section 172 Section 172—The Case Diary of an Investigating Officer which is not a public document cannot be made public by swearing affidavit. Bangladesh vs Dr Shamima Sultana Rita 54 DLR (AD) 151. Section 172—A case diary maintained by the Police cannot be treated as substantive evidence but it may be used for the purpose of ascertaining the truth or otherwise of the evidence appearing in the case. Abdus Sukur Miah vs State 48 DLR 228. Section 172 Diary The 'diary' referred to in sub-Section (1) is a special diary referred to in Section 172 of the Code read with regulation 68 of Police Regulations, Bengal. Regulation 68 provides the custody of case diary as under: "68. Custody of case diaries. (a) Only the following police officers may see case diaries:- (i) the investigating officer; (ii) the officer in-charge of the police station: (iii) any police officer superior to such officer in-charge; (iv) the Court officer: (v) the officer or clerk in the Superintendent's office specially authorized to deal with such diaries; and (vi) any other officer authorized by the Superintendent. (b) The Superintendent may authorize any person other than a police officer to see a case diary. (c) Every police officer is responsible for the safe custody of any case diary which is in his possession. (d) Every case diary shall be treated as confidential until the final disposal of the case, including the appeal, if any, or until the expiry of the appeal period. (e) A case diary shall be kept under lock and key, and, when sent by one officer to another, whether by post or otherwise, shall be sent in a closed cover directed to the addressee by name and superscripted -Case diary. A case diary sent to the Court office shall be addressed to the senior Court officer by name. (f) A cover containing a case diary shall be opened only by the officer to whom it is addressed, except as prescribed in clauses (g) and (h) if such officer is absent, the date of receipt shall be stamped upon the cover by the officer left in charge during his absence and the cover shall be kept till his return or forwarded to him. (g) Covers containing case diaries received in the Superintendent's office shall be opened as prescribed in regulation 1073, and made over directly to the officer or clerk specially authorized to deal with case diaries. Such officer or clerk shall take action under clause (i) and personally place the diaries before the Superintendent or other officer dealing with the case. (h) Covers containing case diaries received in the Court office may be opened by any officer specially authorized in writing by the Court officer or by a superior officer. (i) When an officer opens a cover containing a case diary, he shall stamp or write on the diary the date, if any, which has been stamped on the cover under clause (f) or, if there is no such date on the cover, the date on which he received it, and shall, after perusing the diary, file it with any other diaries relating to the same case which are in his possession. A Circle Inspector and a Court officer shall stamp or write such date on every page of the diary and on every enclosure received with it, such as statements recorded under Section 161, Code of Criminal Procedure, maps and the brief. (j) Every Investigating Officer shall be provided with a deed box, and every Circle Inspector, Sub-divisional Police Officer and Court officer with a suitable receptacle, in which to keep case diaries under lock and key. Ministry of Law, Justice & Parl. Afrs. VS BLAST, [3 LM (AD) 274] Section 172- The object of use of special diary under Section 172 of the Code has been well explained by Edge,CJ. in Mannu, ILR 19 All 390 "the early stages of investigation which follows on the commission of a crime must necessarily in the vast majority of cases to be left to the police and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary for the protection of the public against criminals for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false or misleading, which was obtained from day to day by the police officer who investigating the case and what were the lines of investigation upon which the police officer acted." .......Ministry of Law, Justice & Parl. Afrs. -VS-BLAST. (3 LM (AD) 274] Section 172- Section 172 relates to the police diary made in respect of a case under inquiry or trial by the court which calls for it. It is incumbent upon a police officer who investigates the case under Chapter XIV to keep a diary as provided by Section 172 and the omission to keep the diary deprives the court of the very valuable assistance which such diary can give......Ministry of Law, Justice & Parl. Afrs. VS-BLAST, [3 LM (AD) 274] Section 172- Diary without any apparent failure-In most cases, the police officers have developed a bad habit of writing case diary long after conclusion of investigation or after a few days of the investigation. It is not at all a promising approach when the police officers follow such procedure. This is a compulsory requirement for an investigation officer to record the case diary without any apparent failure. The case diary must refer to the proceedings in investigation of an alleged offence. Section 172 of the Code clearly states:- "Every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary.............Ministry of Law, Justice & Parl Afrs. -VS- BLAST. [3 LM (AD) 274] Section 172 Record the case diary- A case diary is written as the investigation progresses. It is, therefore, obligatory to record the case diary every day when investigation is taken place. The writing up of the case diary must not be held up at the end of the day. It is always wise to write up the case diary in the place where investigation is conducted. The quick and immediate writing up of case diary helps recording every little detail of the investigation properly. This sort of case diary truly reflects the nitty-gritty of the police investigation. The case diary needs to be recorded as the case advances during the course of investigation...... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] Section 172- Case diary- Keeping case diary under safe custody is an important task - Keeping case diary under safe custody is an important task. The case diary is the picture of the entire result of the investigation and other particulars regarding the topography of the place of occurrence, the probability of approach of the offender to the scene and the direction of retreating and the location of the probable witnesses etc. The activities of the police investigation officer can very well be looked after by the senior police officers going through the records of the case diary. ......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, (3 LM (AD) 274] Section 172- The case diary must include entries of necessary information for each of the days The language used is day by day and therefore, it is mandatory duty for such officer to record every day's progress of the investigation. The case diary must include entries of necessary information for each of the days when investigation is in progress. Sometimes the investigation officers neglect the examination of the witnesses on the first day of the visit of the place of occurrence and after consuming days together record the statements in a single day. This process is totally unauthorised. In every case the investigation officers must record the statements of the witnesses present expeditiously on the first day or the following day if the FIR discloses the names of the witnesses who are acquainted with the facts of the case. Section 157 of the Evidence Act in an unambiguous language stated that the admissibility of a previous statement that should have been made before an authority legally competent to the fact 'at or about the time', when the fact to which the statement relates took place. The object of this Section is to admit statements made at a time when the mind of the witness is still so connected with the events as to make it probable that his description of them is accurate. But if time for reflection passes between the event and the subsequent statement it not only can be of little value but may be actually dangerous and as such statement can be easily brought into being. ......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274] Section 172 Political rivalry Nothing which does not fall under one of the above heads need be entered, but all assistance rendered by members of Union Parishads shall be noted. When the information given by a member of a Union Parishad is of a confidential nature, his name shall not be entered in the case diary, but the investigating officer shall communicate his name and the same time note briefly in the case diary that this has been done. This is an obsolete provision and in the present circumstances, the assistance as mentioned above is redundant because of political rivalry...... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, [3 LM (AD) 274] Section 172(1)- Every detail in connection with the investigation into the offence must clearly be recorded without fail. It is to be noted that in Section 172(1) of the Code the word "Shall" has been used which definitely indicates "mandatory". So, a case diary must be recorded and all the details as mentioned in the Section 172(1) of the Code must be recorded without any failure by the police officer in charge of investigation of an offence. .....Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274] Section 172-It is incumbent upon a police officer who investigates the case under Chapter XIV to keep a diary as provided by Section 172 and the omission to keep the diary deprives the court of the very valuable assistance which such diary can give. Bangladesh, represented by the Secretary, Ministry of Law, Justice & Parliamentary Affairs vs BLAST, 69 DLR (AD) 63 Section 173 Section 173-It is a settled principle of law that the ownership or title to a certain property cannot be decided by any Criminal Court. Besides, the investigation officer has no authority to decide the ownership of the excavator merely by submitting an enquiry report. The Chief Metropolitan Magistrate and the Additional Metropolitan Sessions Judge acted beyond their jurisdiction in handing over the possession of the excavator in favour of the informant basing on the report of the investigating officer. Abdur Razzak Liton (Md) vs State, 66 DLR 334 Section 173-FIR named accused Yousuf Ali Mridha has some involvement in the offence alleged along with the other accused but not sending up the said FIR named accused by investigation officer is not acceptable by this court, therefore, a departmental proceeding should be brought against the investigation officer by the Durnity Daman Commission and the Special Court must consider the matter. The proceeding of the case shall continue against said Yousuf Ali Mridha. The learned Metropolitan Senior Special Judge, is hereby directed to continue the proceeding of the case and trial thereof by including Yousuf Ali Mridha as an accuse Abdul Wadud Bhuiyan (Md) vs State, 67 DLR 435 Section 173-Filing of naraji and the application for further investigation after acceptance of the report under Section 173 of the Code are misconceived attempt. Moreover, Commission cannot file a naraji petition against a report of investigation which was done or conducted by itself. Durnity Daman Commission vs Monjur Morshed Khan, 69 DLR 380 Section 173-All the inquiries/ investigations will be conducted behind the back of the accused person, and the trial of a criminal case shall be commenced and then continued in presence of the accused. Before commencing trial, all the steps taken by the investigating officers and the Magistrate's are the part of inquiries/ investigations, which require to be carried out without notifying the accused. Dr Akhtaruzzaman vs State, 70 DLR 513 Section 173-At the investigation/ inquiry stage, a Magistrate should not exclude the name of any person who has been charge-sheeted by the 10 or whose name comes up in the judicial inquiry. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618 Section 173-Naraji Petition-When a naraji petition is filed against the police report the same should be disposed of in accordance with law. Khurshida Begum vs Monira Begum, 64 DLR 91 Section 173-The investigation conducted by the 10 was incomplete and further investigation should be directed for securing the ends of justice. Mahbubur Rahman vs State, 64 DLR 265 Section 173-10 submitted his investigation report on the basis of insufficient examination of relevant persons and document with regard to the two vital issues. The first one is about the surplus status of the 11 accused-petitioners. The other vital issue is with regard to the alleged forgery in the nomination letter containing the signature of the concerned Deputy Secretary. Mahbubur Rahman vs State, 64 DLR 265 Sections 173 and 498-Anticipatory bails shall not survive post charge-sheet stage. Durnity Daman Commission vs Dr. Khandaker Mosharraf Hossain, 66 DLR (AD) 92 Sections 173 and 537-Investigation held by the junior officer the appellant has become seriously prejudiced which cannot be cured by the provision of Section 537 of the Code, Sazzak Hossain vs State, 64 DLR 113 Sections 173 and 561A-The investigating officer having found no evidence oral or documentary whatsoever in support of the alleged beating of demanding dowry. It is found that the tribunal without assigning any reason whatsoever giving a goby to the martial aspects of the final report took cognizance against the accused-appellant and others on the basis of a naraji petition filed by the informant. Alamgir Matubbar (Md) vs State, 70 DLR 809 Sections 173 and 561A-Non- speaking order-Mere omission to assign reasons in the impugned order is not fatal, if in law the order is sustainable. To justify the impugned order, we have carefully examined the entire materials on record including the first information report, final report, notice under Section 7(1) of the Muslim Family Ordinance, talaknama, it appears that the materials on record are plainly insufficient to think that there are reasonable grounds exist for believing that the accused appellant has been guilty of the offence alleged. Alamgir Matubbar (Md) vs State, 70 DLR 809 Section 173- Re-investigation or a further investigation is a matter of semantics-Appellate Division helds that there is no gainsaying that the Code of Criminal Procedure does not provide for reinvestigation of any case. Whether or not the investigation done in any case subsequent to the submission of a charge sheet after the initial investigation is completed, con is "reinvestigation" the or result of a "further a investigation" is a matter of semantics. The question that may be posed is whether or not there would be any prejudice if instead of calling it "reinvestigation", the second investigation was termed "further investigation", which is allowed by the law. Under normal circumstances, if on the basis of fresh evidence a supplementary charge sheet is submitted, for example by adding names of accused person(s) who had not been included in the initial charge sheet, there would be no questioning the legality of the supplementary charge sheet. That clearly is the purpose of Section 173 (3B) of the Code......Abul Bashar Chowkidar =VS Abdul Mannan & others, [1 LM (AD) 541] Section 173- Further investigation- The informant lodged an FIR making specific allegations against the accused persons and the case started on that FIR. The police investigated into those allegations and submitted final report, but the learned Magistrate, considering the application filed by the informant against that final report and the materials on record including the FIR, without accepting that final report, ordered for a further investigation by judicial Magistrate, which was not illegal at all.....Mahmud Miah =VS=The State, [10 LM (AD) 430] Section 173(3B)- Further investigation Unless an extraordinary case of gross abuse of power is made out by the investigating agency, the Court should be quite loathe to interfere with the investigation, a field actively reserved for the investigating agency and the executive. The expression 'further investigation' as used in 173(3B) is distinguishable from reinvestigation. Further is additional, more, supplemental. Further investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation. Here in this case in his prayer the petitioner, inter alia, prayed, শুধুমাত্র দরখাস্তকারী আসামী নিজের নামে অর্জিত স্থাবর ও অস্থাবর সম্পদ বিবেচনা নিমিত্তে পূনঃতদন্তে প্রেরনের আদেশ দানে আপনার একান্ত মর্জি হয়।" We do not find any provision in the law for holding পূনঃতদন্ত of the case at the instance of the accused person. The point raised by Mr AJ Mohammad Ali can be taken as defence of the case at the time of holding trial. We do not find any substance in this petition. .....Dr Khandaker Mosharraf Hossain =VS= State, [5 LM (AD) 238] Section 173—The Police can file supplementary charge-sheet even after acceptance of the previous charge-sheet. There is no limitation in this regard to taboo in the law. Sultan Ahmed alias Sentu vs State 48 DLR 143. Section 173 and 190 of the Code of Criminal procedure: It is settled Principal of law that initiation of a criminal proceedings starts after taking cognizance of offence. Submission of charge sheet cannot be treated as finality of investigation until cognizance of the offence is taken by the appropriate court. ...(Para 18) Section 561A of the Code of Criminal procedure: The Rule issuing Bench of the High Court Division overstepped in its jurisdiction in not considering that the petitioner filed the application under Section 561A of the Code of Criminal Procedure without surrendering to the jurisdiction of the appropriate court and thus illegally entertained the application under Section 561A and stayed further proceedings of the case. (Para 21) Section 561A of the Code of Criminal procedure: It is well settled that when a person seeks remedy from a court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under Section 561A of the Code of Criminal Procedure, he/she ought to submit to due process of justice. The Court would not Act in aid of an accused person who is a fugitive from law and justice. (Para 22) Article 27 of the Constitution of Bangladesh: As per Article 27 of the constitution all citizens are equal before the law and are entitled to equal protection of law. The judges of the apex court have taken oath to administer justice in accordance with law without fear or favour. The judiciary must stand tall and unbend at all circumstances, even in adverse situation. The judiciary should not create a precedent which cannot be applicable for all. Each and all of the citizens are entitled to get equal treatment from the court of justice. There is no high or low before the court of law. (Para 24) [17 SCOB [2023] AD 54] Section 173—There cannot be any reinvestigation into a case after charge-sheet is submitted. Mubashwir Au vs State 46 DLR 535. Section 173—There is no provision in the Code of Criminal Procedure entitling the accused persons to file an application to the Magistrate for further investigation or reinvestigation into a case in which charge-sheet has already been submitted against them. In the case of Sukhil Kumar vs State reported in 47 DLR 252 =15 BLD 311 distinction between further investigation and reinvestigation with reference to earlier decisions was considered and it was held that prayer for further investigation made by the accused persons against whom charge sheet has already been submitted is nothing but a prayer for reinvestigation in the name of further investigation and the same cannot be allowed. We, therefore, find merit in this Rule Shajahan All vs Belayet Hossain 47 DLR 478. Section 173—In the name of further investigation police cannot make reinvestigation of the case and discharge the accused person against whom charge-sheet has already been submitted. Moslemuddin vs State 47 DLR 420. Section 173(3B)-There is at least a clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under Section 409/109 read with Section 5(2) of the Prevention of Corruption Act, 1947. Begum Khaleda Zia vs State, 68 DLR 277 Section 173(2)(3B)- Sub-Sections (2) and (3B) of Section 173 have clearly spelt out about the further investigation and further investigation presupposes a prior police report and that must be by one investigation agency at a time and not by two investigation agencies. State vs Secretary, Ministry of Public Adminis- tration, 67 DLR (AD) 271 Section 173(3B)-Final report-narazi further investigation-The investigation of crime is carried out dehors the mandate contained in the Code containing Sections 154-173 of the Code and that the further investigation is a statutory right of the investigating agency under Section 173(3B). Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120 Section 173(3B)-Since the order of discharge neither amounts to an acquittal nor to a final order, the accused can be proceeded against for the same offence on the basis of supplementary report submitted on holding further investigation or on the basis of naraji petition filed by the informant/complainant. It is no longer res integra that the Court, if exigent to do so, to espouse the cause of justice, can trigger further investigation even after a final report is submitted. Monjur Morshed Khan vs Durnity Daman Commission, 70 DLR (AD) 120 Section 174 Section 174—A perusal of Section 174 of the Code indicates that the object of the proceeding is merely to ascertain whether a person died under suspicious circumstances or an unnatural death and, if so, what is the apparent cause of death. The question regarding the details of death is foreign to the ambit and scope of proceeding under Section 174. Babul Sikder vs State represented by the DC 56 DLR 174. S. 174 read with Evidence Act, 1872, S. 60 Section 174 Cr PC speak preparation of inquest can be alone only by the officer in-charge of a police station, any one specially empowered by the Government. In the instant case it has been done by an S.I. of police, nor by officer-in-charge. S.I. of police of a police station can investigate a case but can not prepare inquest report and since officer-in-charge did not prepare the inquest report, it stands as an improper piece of paper nor admissible in evidence. The State & Ors Vs. Tajul Islam & Ors, 21 BLT (2013)-HCD-218. Section 176 Sections 176 and 197—Meaning of taking cognizance of offence—Stage of determination of guilt when reaches under Section 176 CrPC— difference between “prosecuted” without prior sanction under Section 6(5) and “taking cognizance” without prior approval. Matiur Rahman vs State 40 DLR 385. Section 176- Section 176 of the Code enables a Magistrate to hold inquiry into a suspicious death. The language used in this Section does not depend merely upon the opinion of the police officer but that there should be a further check by a Magistrate to hold an independent inquiry. The object of holding inquiry is to elucidate the facts of unnatural death before there is any reasonable suspicion of the commission of any offence and when such grounds exist, the inquiry comes under Ain of 2013. ......Ministry of Law, Justice & Parl. Afrs. =VS BLAST, [3 LM (AD) 274] Section 177 Sections 177 and 179—Criminal trial — Interpretation of the provisions of Section 179 of the Code of Criminal Procedure—Territorial jurisdiction of the Criminal Court—Offence of forgery took place in Noakhali but trial being held in Comilla—In view of the provision of Section 179 CrPC the Court of competent Magistrate of Noakhali district where false documents were made and the Court of Additional District Magistrate, Comilla where consequences ensued had both jurisdiction to try the offence of forgery complained of. Jagenath Chandra Bakshi vs State 42 DLR 238. Sections 177-180—The offence under Section 138 of the Act can be completed with the concentration of a number of facts i.e. (i) drawing of the cheque, (ii) presentation of the cheque, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of receipt of the notice. As per provisions of Sections 177, 178, 179 and 180 of the Code of Criminal Procedure if the aforesaid five different acts were done in five different localities any of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act and complainant can choose any one of the Courts in whose jurisdiction any of the 5 components of the said offence was done. The legal notice was issued from a lawyer at Chittagong District Bar and the complainant, for encashing the cheques, presented the same at a Bank at dliittagong. As such, on the ground of initiating the proceeding at Chittagong this proceeding cannot be quashed. Abdul Aiim vs Biswajit Dey 59 DLR 236 Section 179 Section 179—Applicability of Section 179 CrPC to the offences defined in Section 463 Penal Code—provisions of Section 463 PC analyzed. Two essential ingredients of Section 463 PC pointed out—both the competent Criminal Courts at Noakhali and Comilla have jurisdiction to try the offence. Jagenath Chandra Bakhi vs State 42 DLR 238. Section 179(c)—Since in the sequel of the criminal acts of accused Nos. 3 and 4 by way of obtaining signatures of the complainant in blank papers at Jeddah money was withdrawn in Bangladesh, a Criminal Court of competent jurisdiction in Bangladesh can take cognizance in the case in accordance with illustration (c) of Section 179 of the Code. Abdus Sattar vs State 50 DLR (AD) 187. Section 188 Section 188—It was obligatory on the part of the Magistrate to make a written complaint about the nature of the order made by him which was alleged to have been disobeyed and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under Section 188 Penal Code. Abdul Ahad@ Md Abdul Ahad vs State 52 DLR 379. Sections 188 & 196—The alleged offence having been committed in India, the trial of. the case in question cannot be proceeded with without sanction of the Government for the purpose in view of the proviso to Section 188 of the Criminal Procedure Code and sanction obtained in his case under Section 196 of the Code cannot do away with the requirement of proviso to Section 188. This sanction however can be accorded by the Government even after cognizance has been taken of the case if it is found desirable. Since the cognizance of the case has been taken upon a petition by an order of the Government in accordance with Section 196 of the Code of Criminal Procedure the complaint case itself need not be quashed. In this view of ours we are fortified by the decision in the case of Ranjit vs Sm Parul Hore, and another reported in 1980 CrLJ Noc 57 (Cal); (1979)1 Cal FIN 414. Dr Taslima Nasrin vs Md Nurul Alam 48 DLR 280. Section 188- Section 188 of the Code is not at all applicable in this particular case; rather it is inconsistent with the provisions of Section 20(1)and 32 of the Anti-Corruption Commission Act, 2004 and Section 4(4) and 6(1) of the Criminal Law Amendment Act, 1958. (PER M ENAYETUR RAHIM JAGREEING WITH MD FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41 Section 188-The proviso of Section 188 of the Code that no charge as to any such offence shall be enquired into in Bangladesh except with the sanction of the Government, the provision has been made without expressly declaring about what shall, be the consequence of non- compliance of the proviso, it has not been said that for non-compliance, that is for want of sanction of the Government, the proceeding will be invalid or null and void and in absence of the declaration of any consequence for non-compliance, the very proviso is not mandatory. It is merely directory. (PER MD FARUQUE J) Giasuddin al-Mamun vs State, 65 DLR 41 Section 188-The proviso of Section 188 of the Code is not mandatory. (PER MO FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41 Section 188- There is no scope to hold that the sanction of the Government is mandatory to make inquiry of the offence of the case as per Section 188 of the Code. (PER ENAYETUR RAHIM J) Mafruza Sultana vs State, 66 DLR 280 Section 188-The provisions of Section 188 of the Code is not at all applicable in this particular case; rather it is inconsistent with the provisions of Section 20(1) and 32 of the Anti-Corruption Act, 2004 and Section 4(4) and 6(1) of the Criminal Law Amendment Act, 1958. (PER M ENAYETUR RAHIM J) Mafruza Sultana vs State, 66 DLR 280 Section 188-Neither in the Anti- Corruption Act, 2004 nor in the Criminal Law Amendment Act, 1958, has any provision been made requiring the sanction of the Government to take cognizance or enquire into the offences under these Acts by a Special Judge. As per sub-Section 4 of Section 4 of the Criminal Law Amendment Act, 1958 offences being committed outside Bangladesh, shall be deemed to have been committed within the territorial limits of the jurisdiction of the Special Judge in Bangladesh in which the person, committing the offence is found or was ordinarily residing before he left Bangladesh. (PER M FARUQUE J) Mafruza Sultana vs State, 66 DLR 280 Section 188-There was no scope to hold that sanction of the Government was mandatory to make inquiry of the offence of the case as per provision of Section 188 of the Code. Section 188 of the Code was not applicable to this particular case and rather it was inconsistent with the provision of Sections 20(1) and 32 of the Ain, 2004 and Sections 4(4) and 6(1) of the Act, 1958. Mafruza Sultana vs State, 67 DLR (AD) 227 Sections 188 and 344-In exercising the provision of Section 344 of the Code there is no scope to postpone or stop the proceedings of the case for sine die or in other words to quash the proceedings as has been sought by the petitioner. (PER M ENAYETUR RAHIM JAGREEING WITH MD FARUQUE J) Giasuddin-al-Mamun vs State, 65 DLR 41 S. 188-Section 188 of the Code is not at all applicable case; rather it is inconsistent with the provisions of Section 20(1) and 32 of the Anti-Corruption Commission Act, 2004 and Section 4(4) and 6(1) of the Criminal Law Amendment Act, 1958. (Per M Enayetur Rahim J agreeing with Md Faruque J) Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41. S. 188-The proviso of Section 188 of the Code that no charge as to any such offence shall be enquired into in Bangladesh except with sanction of the Govemment, the provision has been made without expressly declaring about what shall, be the consequence of non-compliance of the proviso, it has not been said that for non-compliance, that is for want of sanction of the Government, the proceeding will be invalid or null or void and in absence of the declaration of any consequence for non-compliance, the very proviso is not mandatory. It is merely directory. Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41. S. 188-The proviso of Section 188 of the Code is not mandatory, (Per M Enayetur Rahim Jagreeing with Md Faruque J) Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HCD-41. S. 188 and 344-In exercising the provision of Section 344 of the Code is no scope to postpone or stop the proceedings of the case for since die or in other words to quash the proceedings as has been sought by the petitioner (Per M Enayetur Rahim J agreeing with Md Faruque J). Giasuddin-al-Mamun Vs. State, 65 DLR (2013)-HOD-41 Section 190 Section 190—Sessions Judge cannot take cognizance of a case against the accused sent up in the supplementary charge-sheet without cognizance being taken by the Magistrate. Sultan Ahmed alias Sentu vs State 48 DLR 143. Sections 190 & 436—A Court of Session has no power to take cognizance of any offence as a Court of original jurisdiction and the Magistrate having power to take cognizance of any offence has exclusive power to take cognizance of an offence and to issue process irrespective of any offence, either he has power to hold trial of the case or not. Ziaul Hoque Chowdhury vs State 58 DLR 193. Section 190(1)(b)—A naraji petition is a complaint for all practical purposes and if a Magistrate having power to take cognizance of the offence is satisfied on examination of the complainant that the complaint discloses an offence he can take cognizance of the offence, against the accused under Section 190(1)(b), irrespective of an offence which is exclusively triable by a Court of Session. Ziaul Hoque Chowdhury vs State 58 DLR 193. Sections 190, 155 & 537—Non cognizable offence—Mere irregularity like investigation by an officer not authorised to investigate a non–cognizable offence does not affect the legality of a proceeding of a Court below. Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of Section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140. Sections 190 and 193—Orders passed by the Sessions Judge starting from registering the complaint as petition case upto the orders date directing the Assistant Superintendent of Police for further enquiry are without jurisdiction. Eman Ullah vs Abdul Kader 54 DLR 623. Sections 190, 195 and 196—198—Provisions in Section 195 like the provisions in Sections 196-198 CrPC are exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence under Section 190 of the said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul Hai Khan vs State 40 DLR (AD) 226. Sections 190, 200 and 202—An enquiry or an investigation can be directed by the Magistrate under Section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 461. Section 190(1)—Refusal to take cognizance against some of the accused persons amounts to dismissal of the complaint as against them and application filed before the learned District Judge by the complainant is maintainable. Magistrate’s power of taking cognizance under Section 190(1) in all cases, including those exclusively triable by a Court of Sessions, has remained unaffected by (the repeal of the provision for committing the accused to the Court of Sessions. Syed Ahmed vs Habibur Rahman 42 DLR 240. Sections 190(1) & 156(3)—The prayermade by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making re-investigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed All @ Subed 47 DLR 252. Sections 190(1)(b) & 200—It appears that the naraji petition has been filed on a complaint but as an application out of apprehension that the Magistrate might accept the recommendation of the Investigation Officer. It is no more than an application to the Magistrate to be cautious and careful in considering the materials before him. Shaban All Mia, Shukur All Khandaker vs State, Md Harmuz All Mollah 48 DLR 55. Section 190(1)(b)—The Court can, in a given case, regard the police report as a report under Section 190(1 )(b) CrPC and take cognizance on that Police Report. (Relied on 10 DLR Dhaka 152). Aroj Ali Sarder vs State 41 DLR 306. Section 190(1)(c)—Direction to the Upazila Magistrate to take cognizance. Sessions Judge left nothing for the learned Magistrate to do except taking cognizance. Quamruzzaman alias Lal vs State 40 DLR 509. Section 190(1)(c)—Sessions Judge acted illegally in directing the Upazila “Magistrate to take cognizance of the offence. Quamruzzaman alias Lal vs State 40 DLR 509. Section 190(1 )(c)—Cognizance of offence by Magistrate—The Magistrate has got wide power under Section 190(1 )(c) CrPC to take cognizance of any offence even upon his knowledge or suspicion that an offence has been committed and to pass, in the present case, the impugned order sending the case for judicial enquiry after rejecting the police report and then taking cognizance after receipt of the enquiry report. Abdur Rashid vs State 43 DLR 279. Section 190, 193- On reading Section 190 along with Section 193, there is no gainsaying that a Magistrate shall take cognizance of an offence as a court of original jurisdiction and unless he takes cognizance of the offence the accused cannot be committed to the court of session for trial. The word 'committed' has been deleted and in its place the word 'send' has been substituted. The object of the restriction imposed by Section 193 is to secure the case of a person charged with a grave offence. The accused should have been given an opportunity to know the circumstances of the offence imputed to him and enabled him to make his defence. There was a provision for inquiry under Chapter XVIII of the Code and in such inquiry the accused could have taken his defence, but after the omission of the Chapter, no inquiry is held under the present provision of the Code. Even then the power of the Magistrate to take cognizance of the offence as a court of original jurisdiction has been retained. The Sessions Judge can take cognizance of any offence only after the case is sent to him for trial...... Mufti Abdul Hannan Munshi -VS- The State, [3 LM (AD) 566] Section 190(1)(b)- The Magistrate is not bound to accept the police report-On perusal of the recommendations it is to be noted that most of the recommendations are in conformity with Part III of the constitution but some of the recommendations are redundant, some of them are not practically viable and some of them are exaggeration. As for example, a Magistrate cannot decide any case relying upon the post-mortem report of a victim. It is only if a case is filed whether it is a UD case or complaint, the police find that the death is unnatural, it can send the dead. body to the morgue for ascertaining the cause of death. In respect of UD case, a police officer compulsorily sends the dead body to the morgue for ascertaining the cause of death with an inquest report. After receipt of the report, if the police officer finds that the death is homicidal in nature, the police officer is under obligation to register a regular case. Even if after investigation the police officer does not find any complicity of accused person, the Magistrate is not bound to accept the police report. It may direct further inquiry or further investigation over the death of the victim if he finds that the death is homicidal in nature. The power of the Magistrate is not circumscribed by any condition. The Magistrate is not bound to accept the police report....... Ministry of Law, Justice & Parl. Afrs. =VS= BLAST. [3 LM (AD) 274] Section 190(1)(b)- Second charge sheet is not one contemplated under the law and hence it is illegal- Appellate Division is of the view that the second charge sheet is not one contemplated under the law and hence it is illegal. No trial can take place against accused Ayatun Nahar, on the basis of such illegal and palpably motivated charge sheet. Accordingly the impugned judgement and order passed by the High Court Division is modified. The direction of the High Court Division so far as it relates to Ayatun Nahar is set aside. .....Abul Bashar Chowkidar VS Abdul Mannan & others. [1 LM (AD) 541] Sections 190 and 193-The object of the restriction imposed by Section 193 is to secure the case of a person charged with a grave offence. The accused should have been given an opportunity to know the circumstances of the offence imputed to him and enabled him to make his defence. There was a provision for inquiry under Chapter XVIII of the Code and in such inquiry the accused could have taken his defence, but after the omission of the Chapter, no inquiry is held under the present provision of the Code. Even then the power of the Magistrate to take cognizance of the offence as a court of original jurisdiction has been retained. The Sessions Judge can take cognizance of any offence only after the case is sent to him for trial. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490 Section 190 read with 200, 202, 203 and 204-After examining the informant under Section 200 the Magistrate was duty bound to examine the other witnesses listed in the naraji application and, thereafter, the Magistrate either could have taken cogni- zance directly under Section 190(1)(a), if satisfied, or could have proceeded towards judicial inquiry. The moment the Magistrate would decide to examine the complainant (Naraji applicant) under Section 200, s/he is bound either to take cognizance under Section 190(1)(a) or to take steps under Section 202 for judicial inquiry/investigation, inquiry/investi- gation by the police, inquiry/ investigation by the other person and, after receiving the report of inquiry/investigation from the judicial Magistrate/police/other person, the Magistrate shall either dismiss the complaint under Section 203 or issue process against the accused under Section 204. Dr Akhtaruzzaman vs Store, 70 DLR 513 Sections 190(1)(a) and 202-When- ever the informant files naraji petition bringing allegation of serious biasness against the police department substan- tiating strong grounds thereto and prays for judicial inquiry having come up with definite allegation against specified persons/s, the Judicial Magistrate should, at first opportunity, treat the naraji petition as a complaint petition instead of sending it to a different department of police for further investigation and, then, if satisfied, either take cognizance directly under Section 190(1)(a) or take recourse to the provision of Section 202 of the CrPC. Shah Kutub Uddin Talukder alias Ruyel vs State, 70 DLR 618 Section 191 Section 191—The Magistrate cannot proceed with the trial himself as the offence alleged is triable in the Court of Sessions. Provision of Section 191 of the Code is not applicable in the case triable in the Court of Sessions. Hifzur Rahman vs State 50 DLR 325. Section 193 Section 193—Section 193 provides that except as otherwise expressly provided no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a competent Magistrate. Bangladesh vs Yakub Sardar. 40 DLR (AD) 246. Sections 193(1), 204, 439 and 439A—Case sent to the Sessions Court by Upazila Magistrate— Sessions Judge recorded some evidence— Prosecutor made an application for sending record to Upazila Court for taking cognizance against some persons allegediy impiicated in the offence, by the witnesses in Sessions Court—Sessions Judge made an order accordingly—Magistrate complied with the order of the Sessions Judge. Held—Order of Sessions Judge is illegal and consequently cognizance taken of by the Magistrate thereon is illegal—The Court of Sessions or the High Court Division has no jurisdiction to interfere with the discretion of the Magistrate in the matter of taking cognizance of any offence irrespective of the fact whether the offence is triable by a Court of Sessions or not. Abdul Matin vs State 42 DLR 286. Section 193- Another point raised in the High Court Division is that the trial of the accused Mufti Abdun Hannan is vitiated by reason of not taking cognizance of the offence by the learned Sessions Judge. The High Court Division relying upon the case of Dharmatar V. State of Horyana, (2014) 3 SCC 306, RN Agarwal V. RC Bansal, (2015) 1 SCC 48, Haripada Biswas V. State, 6 BSCR 83 held that the trial of the accused has not been vitiated for this reason. Section 193 of the Code of Criminal Procedure provides that: "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a Magistrate duly empowered in that behalf. (2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Government by general or special order may direct them to try or as the Session Judge of the division, by general or special order, may make over to them for trial." Mufti Abdul Hannan Munshi -VS- The State, [3 LM (AD) 566] Section 195 Sections 195(1) and 234-Since the document allegedly created by Moudud Ahmed has been filed in the suit and the writ petition, those are subject matter of the appeals and the documents have been used by the respondent in judicial proceeding The initiation of the proceeding is barred under Section 195(1)(c) of the Code. Chairman, RAJUK vs Manzur Ahmed @ Manzoor Ahmed, 68 DLR (AD) 337 Section 195—The offences alleged to have been committed in connection with proceeding of a Civil Court cannot be tried by any other Court except upon a complaint by the said Court. Syed Ahmed Chowdhury vs Abdur Rashid Mridha and 15 ors 54 DLR 498. Section 195—Section 195 includes any document produced or given in evidence in the course of a proceeding whether produced or given in evidence by the party who is alleged to have committed the offence or by anyone else. Akkas Ali Molla vs State 55 DLR 296. Sections 195 and 198—There is no bar for an individual to making a complaint in respect of alleged defamatory statement made in a judicial proceeding—Section 198 CrPC enables an individual to file such complaint. AY Mashiuzzaman vs Shah Alam 41 DLR 180. Sections 195 & 476—Section 476 is not independent of Section 195 of the Code—Section 476 does not abridge or extend the scope of Section 195(b) or (c). Abdul Hai Khan vs State 40 DLR (AD) 226. Sections 195 & 476—When a fraudulent document is not produced in a proceeding before Court private complaint is not barred. It is absolutely clear that unless the document is filed in Court, the Court cannot make a complaint. In the present case in view of the positive finding of the High Court Division and on the failure of the learned Advocate to show before us that, in fact, the allegedly fraudulent document was produced in Cr Case No.116 of 1983, the private complaint at the instance of the informant is not barred. Shamsuddin Ahmed Chowdhury vs State 49 DLR (AD) 159. Proceeding During the pendency of police investigation of a cognizable case the steps taken before the Magistrate in relation to production of the accused granting of bail etc. have been held to be proceeding before a Court and the functioning of the Magistrate in his judicial capacity. Section-195(1)(b), Cr.P.C Serajuddowla Vs. Abdul Kader and another 13BLD (AD)94 Ref: AIR 1979(SC)777; AIR 1941 (Bom) 294; 29 DLR(SC)256 Cited Sections 195 and 476-When a question of right, title and interest relating to any immovable property is in seisin of the Court, the Anti- Corruption Department has no jurisdiction to hold any inquiry under articles 31 and 50 of Anti- Corruption Manual. Humayun Majid vs Bangladesh Bureau of Anti-Corruption 54 DLR 12. Sections 195 & 561A—In a proceeding where a forged document has been used the Court concerned should make the complaint. The criminal Court should not take cognizance on a private complaint. The want of complaint under Section 195 is incurable and the lack of it vitiates the whole trial. Wahida Khan vs Shahar Banoo Ziwar Sultan and State 48 DLR 286. Ss. 195(1) and 561A-Filing of forged documents before the Revenue Officer acting under Section 143 in mutation proceeding, does not invoke the bar under Section 195(1)(c) of the Code and in such a case the Court can take cognizance on the petition of complaint filed by a private person. Aslam (MD) Vs. Md Salauddin, 18 BLC (2013)-HCD-235 Section 195(1)—A criminal Court can take cognizance of any offence described in Sections 463, 471, 475 and 476 of the Penal Code on the basis of complaint by an aggrieved party when such offence is alleged to have been committed by a party to any mutation proceeding in respect of a document produced in evidence in such proceeding. Shahera Khatun vs State 53 DLR 19. Section 195(1)(a)—If the officer to complain is the officer also to take cognizance then there is no necessity of filing a written complaint by the same officer to himself for taking cognizance of an offence against the accused persons. Anwar Hossain vs State 48 DLR 89. Section 195(1)(b) Section 195(1)(b)—Proceeding in Court—In view of the decision that a Magistrate acts his judicial capacity while discharging an accused on the basis of a final report by the Police and the reason ings in the majority judgment in 1979 AIR (SC) 777, the offence under Section 211 Penal Code was committed in relation to a proceeding in Court and, as such, the bar under Section 195(1 )(b) is attracted. Seraj uddowla vs Abdul Kader 45 DLR (AD) 101. Section 195(1)(b)—Complaint of Court— Requirement—When the Magistrate considered the prayer of the Investigating Officer that he appellant be prosecuted for making a false charge and the prosecution report upon which cognizance was taken shows that the same was filed as directed by the Magistrate it is clear that the prosecution of the appellant was sanctioned by the Magistrate himself and, as such, it could not be said that the cognizance was taken in violation of Section 195(1)(b). Serajuddowla vs A Kader 45 DLR (AD) 101. Section 195(1)(c) The view taken in AIR 1943 Nagpur 327 “all the High Courts are now agreed that once a forged document is brought then private complaints subsequent to this are barred by Section 195 even in respect of anterior forgeries—anterior, that is, to the litigation”—has been consistently followed in 20 DLR Dhaka 66 & other cases. Abdul Hai Khan vs State 40 DLR (AD) 226. Section 195(1)(c)—Legislature did not intend any anomalous situation that might arise if the trial of one offence may be made dependent upon a possible complaint by the Court while the other offence is tried upon a private complaint. Abdul Hal Khan vs State 40 DLR (AD) 226. Section 195 (1)(c)- Share certificate are forged and has no value in the light of the expert report- In the light of the expert report with regard to the thumb impression appearing on the document of transfer of shares and considering the fact that the document prima facie appears to have been forged, we hereby direct Mohammad Mehdi Hasan, Deputy Registrar, Supreme Court of Bangladesh to lodge a complaint, before a Magistrate of the first class having jurisdiction, against the appellants, namely Reza Bin Rahman and Abdul Wahab Azad in terms of Section 195 (1)(c) of the Code of Criminal Procedure for committing an offence punishable under Sections 471/475/476 of the Penal Code. ...Reza Bin Rahman VS A.T.G. Mortaza, [7 LM (AD) 8] That the certified copy of the disputed deed being No.19974 dated 31-10-2005 was produced before the Court, not the original copy of the deed. Only the production of the certified copy of the alleged deed cannot attract the provision of Section 195(1)(c) of the Code of Criminal Procedure, 1898. To attract the provision of Section 195(1)(c) of the Code, the original copy of the deed should have been produced before the Court, because the genuineness of the said claim i.e. the alleged deed is a forged deed and the involvement of the accused persons in the creation of the forged deed is subject to proof by examining the witnesses. When the certified copy of a deed was produced on a claim that the deed was forged and the original copy was not produced, then it was not possible to determine the genuineness of the certified deed. So, the proceeding of CR Case No.1966 of 2005 is not barred under Section 195 of the Code of Criminal Procedure. [74 DLR (AD) 83] Section 195(1)(c)—Jurisdiction of a criminal Court when barred. Which Court is empowered to take cognizance of offences in the Section 195(1)(c) Abdul Hal Khan vs State 40 DLR (AD) 226. Section 195(1)(c)—No cognizance can be taken against one of the appellants who appears to have forged the document expect on complaint by the Court. Abdul Hal Khan vs State 40 DLR (AD) 226. Section 195(1)(c)—Private complaint, when incompetent—Ingredients of offence such as forging of a document and making use of such documents in Court by a party to the proceeding if found present in a case then the mandatory provision against filing of a private complaint comes into play. The instant proceeding initiated by the complainant opposite party is a bar under Section 195(1)(c) CrPC and the Courts concerned only have sole jurisdiction to make a complaint in the interest ofjustice. Ajit Kumar Sark.er vs Radha Kanta Sarker 44 DLR 533. Section 195(1)(c)—Prosecution for a document given in evidence—From a perusal if the provision of law it appears that the words “documents produced or given in evidence” contemplate the original documents alleged to be forged and not a certified copy of the same. If the document in question is not produced in Court, but a certified copy of the same is produced, no complaint from the Court is necessary for prosecution of the alleged offenders In view of the decision in the case of Saurnakhsingh vs King AIR 1950 (PC) 31 the absence of complaint cannot stand as a bar to the trial of the accused- petitioner in the present case for forgery relating to the sale deed produced in Court in the earlier SCC suit. Shambhu Nath Saha vs State 43 DLR 660. Section 195(1)(c)—Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102. Section 195(1)(c)—Use of a photo copy of the forged document could not amount to the use of a forged document. It would appear that the photocopy of the kabala which is said to be forged by the opposite party gave only a clue or inkling to the forgery. The action brought by the opposite party against the petitioner is an action independent of the filing of photocopy of the forged document in the Court of Magistrate. Therefore, it is clear to see that we are not to depart from the views held by the superior Courts including the Privy Council that when the original forged instrument is not used in the Court Section 195(i)(c) is no bar to a proceeding for forgery. Moklesur Rahman Sharif vs State, Jamiruddin Sharf47 DLR 229. Section 195(1)(c)—Words “document produced or given in evidence’ contemplate to produce original document alleged to have been forged and not a photocopy. Abdul Gafür alias Kana Mia vs Md Nurul Islam 56 DLR 519. Section 195(1)(c)—Forged document produced before a revenue officer not being considered as a Court does not stand as a bar for initiation of a criminal proceeding by the private person for a commission of forgery. Chitta Ranjan Das vs Shashi Mohan Das 56 DLR 276. Section 195(1)(c)—In the instant case, in the absence of the original document being produced in the proceeding the bar under Section 195(1)(c) will not apply. Abdus Sattar Pramanik vs State 56 DLR 452. Section 195(1)(c)—Since the alleged forged document has been filed in the civil Court which is the subject matter of a suit for Specific Performance of Contract, it is for the concerned Civil Court to lodge any complaint before the criminal Court if it finds the forgery relating to the said document But since the instant proceeding in GR Case No. 190 of 2000 under Sections 420/467/ 468/471 has been initiated on private complaint the same cannot continue in view of the provision of Section 195(1 )(c). Abur Rahman vs State 59 DLR 683. Code Criminal Procedure [V of 1898] Section 195(1)(c) and 476- The certified copy bearing the P.C No. 941 of 2009 of the above noted judgment and order shows that the application for the same was shown to be made on 12.08.2009, on its first page although the enquiry discloses that the application for the certified copy was actually made on 27.01.2010. This fraud was practised obviously to save the period of limi tation. As such, the Registrar is directed to take disciplinary action against the delinquent employees of the concerned Section of the High Court Division. The Appellate Division held that since apparently a fraud has been committed a complaint in accordance with Section 195(1)(c) read with Section 476 of the Code Criminal Procedure is required to be filed before the concerned cognizance Court. Under the circumstances, let one of the Deputy Registrars of the High Court, Division, be directed to file a petition of complaint in the Court of Chief Metropolitan Magistrate, Dhaka, against the applicant of the certified copy and others who are responsible for the fraud under Section 195(1)(c) read with Section 476 of the Code of Criminal Procedure and for taking necessary actions in accordance with law. Let the concerned original certified copy bearing P.C. No. 941 of 2009 of the judgment and order dated 11.08.2009, passed by the High Court Division in F.A. No. 249 of 1997, along with the application for the certified copy and a copy of the enquiry report dated 15.01.2011, be forwarded to the concerned Court immediately, after keeping photostat copies of all those documents in the office, duly attested by the Registrar. Rustom Ali and others Vs. Hasen Ali and others (Civil) 16 ALR (AD) 95-96 Section 195(1)(c) and (4)—Ambit of sub- Section (4) of Section 195 CrPC—It is therefore clear that the offences referred to in cl.(c) when committed in pursuance of a conspiracy or in the course of the same transaction, will fall within the ambit of sub-Section (4) of seãtion 195 including their abetments or attempts independent of the dates of their commissions. Abdul Hye Khan vs State 40 DLR (AD) 226. Sections 195(1)(c) and 476—Restricted application of clause (c) to be discarded—I Ain, therefore, inclined to think that reading clause (c) with Section 476 of the Code, there does not seem to be any compelling reason to restrict the application of the said clause limiting the control of the Court only to few offences committed (pendente lite) as would be the practical result of such interpretation. The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding. Abdul Hye Khan vs State 40 DLR (AD) 226. Sections 195(1)(a)(b)(c) and 476—There is specified procedure and method for filing complaint by a Court in respect of offences describçd in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of Section 195 CrPC. Abdul Hye Khan vs State 40 DLR (AD) 226. Sections 195(1)(c), 476 and 561A—No Court can take cognizance of any offence under Section 467 of the Penal Code without a complaint in writing by the Court in which the document was given in evidence or by a Court to which the said Court is subordinate. Sona Mia vs State 42 DLR 8. Section 195(2)—A Revenue Officer holding an inquiry in a mutation proceeding, in the premises, does not become a court as he does not really adjudicate a right and he does not give a decision which is binding on the parties. Shahera Khatun vs State 53 DLR 19. Section 196 Prosecution for offences against the State Section 196 of the Code of Criminal Procedure provides that no Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Penal Code (except Section 127), or punishable under Section 108A, or Section 153A, or Section 294A, or Section 295A or Section 505 of the same Code, unless upon complaint made by order of, or under authority from, the Government, or some officers empowered in this behalf by the Government. Shamsuddin Ahmed and others Vs. The State and another, 20BLD(HCD) 268 Section 197 Section 197—After arrest at dead of night the victim was beaten to death on his way to the Singra Police Station. He was not even shown any warrant of arrest nor any case number. Such an act of the accused-petitioners can never be said to be an act done by them while acting or purporting to act in the discharge of official duty. AbdulAwal vs State 50 DLR 483 Section 197—Previous sanction of the Government is required under Section 197 of the Code of Criminal Procedure before commencing any criminal prosecution against the petitioner. Kazi Obaidul Haque vs State 51 DLR 25. Sections 197—It appears prima facie that Md Mahabubur Rahman, the then Officer-in-Charge of Ramna Police Station on 3-3-2004, fabricated false evidence by way of making a photocopy of a GD Entry, which he attested as true copy of the GD Entry Register. Such an act by the officer-in- charge can be brought within the mischief of Sections 193/ 194/195 of the Penal Code, since the evidence was used in the trial to secure conviction of innocent accused for commission of an offence involving the death penalty. It further appears that Ahmad Kamrul Islam Chowdhury, who at the relevant time was engaged in the trial of the instant case as Special Public Prosecutor, Chittagong, took positive steps to testify, to the genuineness of the attested photocopy of the GD Entry declaring that he had seen the original GD document. The falsity of their respective attestation/declaration is evident from a cursory glance at the photocopy which shows the original printed form to be upside down. Firstly, an Officer-in-Charge of a police station does not fall in this category as Government sanction is not required for his removal from service. Secondly, in the facts and circumstances of the instant case, the provisions of Section 197 would not be attracted in any event since the act alleged to have been done constituting an offence was certainly not done while acting or purporting to act in the discharge of his official duty. In no way does the act of fabricating evidence have any nexus with the official duty of the officer concerned as contemplated in Section 197 of the said Code. The learned Magistrate is to take a note of this aspect of law accordingly. State vs Sajauddin 60 DLR 188. Section 197—The evidence of the witness including the report of the inquiry held by a Magistrate leads to irresistible opinion that the offence alleged has not been committed by the accused in the discharge of their official duties and, as such, we do not find any force in the submission of the learned Advocate as to applicability of Section 197 of the Code regarding the two petitioners. ASI Md Ayub All Sardar vs State 58 DLR (AD) 13. Section 197(1)- Being illegally gained over the accused-petitioners allowed the garments factories in question to operate in the accused building in violation of the relevant rules and regulations which contributed a lot in the collapse of the building on the fateful date killing 1136 innocent persons as well as injuring more than 1169. Such illegal act or omission of the accused cannot be branded as an act done in the discharge of official duties inasmuch as it was not directly concerned with their official duties and, as such, they are not entitled to get any protection under Section 197(1) of the Code. Shahidul Islam (Md) vs Sate, 70 DLR 263 Sections 198 and 199— If the provision of Section 199 is allowed to be continued, then husband of a woman can compel her to yield to any sexual harassment to attain his personal gain. The provisions of Sections 198 and 199 of the Code not only degraded the dignity of a woman, but the same are offending against the fundamental rights of a woman to be treated equally as well as seek protection of law. These two Sections may either be deleted from the Code or be modified in a way to ensure that the victim or aggrieved woman herself can launch a prosecution against a person liable to be pro-secuted for committing offence under Sections 497 and 498 of the Penal Code. Aftabuddin vs State 63 DLR 235. Section 200 Section 200—Taking cognizance of a fresh case without examining the complainant under Section 200 of the Code of Criminal Procedure is illegal. 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. Abu Bakar vs State 47 DLR 527. Section 200-The Tribunal disposed of the final report not on merit, but mechanically. It is now well established that naraji petition is nothing but a petition of complaint under Section 200 of the Code of Criminal Procedure. On receipt of such Naraji petition, the Tribunal may take cognisance against the accused if it is found reasonable and proper or direct further investigation by higher authority or by another agency of investigation. Abdul Halim Md vs State 60 DLR 393. Section 200-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 of the appellant 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 47DLR 527. Section 200-Naraji petition—Naraji petition is nothing but a petition of complaint under Section 200 of the Code and on receipt of such petition Magistrate may take cognizance against accused persons or may direct further investigation by the Police. The Magistrate is not bound by the final report and may take cognizance against the accused persons on consideration of materials on record or may direct further investigation on his own motion also. Shahjahan Ali Mondal vs Belayet Hossain 47 DLR 478. Section 200—There is no question of prejudice to the accused-petitioner due to the irregularity of non-examination of the complainant by the Magistrate under this Section before he transferred the case for judicial enquiry. Kazi Rashidur Rahman vs Md Giasuddin 48 DLR 299. Section 200—A second prosecution of the same accused is permissible if his order of discharge was not passed earlier on merits. Nurul Hoque vs Bazal Ahmed 48 DLR 327. Section 200—If cognizance is taken on the basis of a fresh complaint there can be no objection to the proceedings at all and in a proper case an application for revival also may amount to a fresh complaint. Nurul Hoque vs Bazal Ahmed 48 DLR 327. Section 200-A Naraji petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a naraji petition by complying with the requirements of the Code. By passing the order of discharge of the accused-petitioner from custody at the instance of $ie police the Magistrate did not become functus fficio and his order of discharge of the accused-petitioner from the custody at the instance of the lice cannot operate as a bar to take cognizance against the accused-petitioner. Nurul Hoque vs Bazal Ahmed 48 DLR 327. Section 200-Since there is no requirement of law to record reasons for taking cognizance we find no illegality in those orders on that count. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291. Examination of Complainant Examination of the informant under Section 200 Cr.P.C. is necessary before sending the case for judicial enquiry and taking of cognizance. When there is a complaint case and a police case over the same occurrence, the complaint case should be tried first and the police case thereafter. There should be simultaneous trail of the two cases. Abul Kashem and others Vs. Sanjida Begum and another, 14BLD(HCD)383 Ref: 37 DLR 227; 37 DIR 335; 28 DLR 359; 18 DLR (SC) 474-Cited Examination of complainant The purpose of examination of the complainant under the Section 200 Cr.P.C is to see whether there is sufficient ground for proceeding and not to see whether there is sufficient ground for conviction. Adequacy or sufficiency of evidence can be determined at the trial-Cr.P.C. S. 200. S. A. Sultan Vs. The State and another, 14BLD(AD) 36 Section 200—Use of the word “report” in this Section in contradiction to the word “complaint” used in Section 200 of the Code appears to be significant. The word “report” presupposes enquiry or investigation and without making enquiry or investigation a report cannot be prepared and submitted. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291. Section 200-Both the Magistrate and the Sessions Judge committed error of law resulting in miscarriage of justice by rejecting the Naraji petition and discharging the accused opposite parties on the basis of the police report. The Magistrate ought to have held an inquiry on the Naraji petition before rejecting the case. Jalaluddin Bhuiyan vs Abdur Rouf 51 DLR 408. Sections 200 and 190—An enquiry or investigation can be directed by the Magistrate under Section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. It is wrong to say that simply because the case was started on a petition of complaint, the Special Tribunal constituted under the Special Powers Act would have no jurisdiction to try the case, if it is otherwise triable under the Act. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 566. Sections 200 & 202—Judicial inquiry held after police report and upon a naraji petition is permissible under provision of Section 202 of the Code and it does not amount to reopening of a case. After receiving the petition of complaint the learned Magistrate proceeded under Section 202 of the Code of Criminal Procedure and himself held the judicial inquiry and in that inquiry as the complainant was examined, the action of the learned Magistrate has not vitiated the proceedings in any way for not examining the complainant immediately after filing of Naraji petition. In view of our discussion above, we therefore find no merit in this Rule. Dilu alias Delwar Hossain vs State, represented by the Deputy Cornmissioner 48 DLR 529. Sections 200 and 202—Either there must be some information before police officer about commission of a cognizable offence or there must be a formal complaint before a Magistrate for starting orholding investigation in a case of cognizable offence. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88. Sections 200 & 202—In order to bring home the charge under Section 420, it is necessary for the prosecution to prove beyond reasonable doubt that the representation made by the accused was known to him to be false and that acting on that false representation, the complainant purchased the land in question. Abul Kashem vs State 59 DLR 1. Sections 200 & 202—[n the judicial enquiry the complainant was examined and thereafter, having found a prima facie case against the petitioner, the Magistrate took cognisance. In such a position the Magistrate committed no illegality in taking cognisance against the peti-tioner without examining the complainant under Section 200 of the Code. Nirode Baran Barua vs Mrinal Kanti Das 59 DLR 456. Sections 200, 202 & 561A—When a naraji petition was filed the same petition should have been treated as petition of complaint and the learned Magistrate was required to act in accordance with provisions laid down in Section 200 or 202 of the CrPC. Abul Hossain vs State 52 DLR 222. Sections 200, 202, 204 and 205C—Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246. Sections 200 & 204 1(A) & 1(B)— From the language of sub-Section (IA) and (TB) of Section 204 of the Code it is clear that taking of cognizance under Section 200 of the Code will not be illegal if list of witnesses and copy of the complaint are not filed before issuance of the process of warrant of arrest or summons. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291. Sections 200 & 561A—The purpose of examination of the complainant under Section 200 CrPC is to see whether is sufficient ground for proceeding and not whether there here is sufficient ground for conviction. Whether the evidence is adequate for supporting conviction can only be determined at the trial and not at the stage of enquiry. Allegations made in the petition of complaint having made out a prima facie case of cheating against the accused-appellant, it is not a fit case to quash the proceeding at the present stage. SA Sultan vs State 44 DLR (AD) 139. Section 200 (aa) Proviso Clause (aa) of the proviso to Section 200, CrPC exempts the complainant court or its authorized staff from such examination on oath. [73 DLR 304] S. 200-The Purpose of judicial inquiry is to ascertain the truth or falsehood of the allegation but purpose of such inquiry is not to ascertain if the allegation, if prima facie made out, would end in conviction. Mostafa Kamal Vs. The State & Anr, 33 BLD (2013)-HCD-81. Section 200-In the realm of almost unqualified power directed to achieving the object of law, naraji stands to lose its ordinary legal signification and is relegated merely to the status of a document supplying important information indicating flaws in the investigation or inquiry making the formalities in taking notice of it totally redundant. There is, no scope in the Ain, to ascribe the status of fresh complaint to naraji-petition. In the same vein, examination or non-examination of the informant /complainant under Section 200 for taking naraji-petition into consideration is of no consequence. Examination of complainant, thus, being unnecessary, non- examination under Section 200 does not furnish any ground for quashing. Anjuara Khanam @ Anju vs State (Full Bench), 68 DLR 466 Section 200(1)(a)-In case of an oral complaint, the Court is bound to examine the complainant on oath and to record his statement and to take his signature thereon. The purpose of such examination is to enable the court to have a recorded picture of the allegations so as to decide whether to proceed with the case or not. Abdul Jabbar Sorker vs State, 64 DLR 103 Section 200(1)(a)-In case of a written complaint, the Court, as per clause (a) of the proviso to Section 200(1) is not bound to examine the complainant on oath or his witnesses, before transferring the case under Section 192 (to another court). The reason is simple, namely unlike an oral complaint, the court has before it a written document to consider and to decide whether or not to proceed with the Case. Abdul Jabbar Sarker vs State, 64 DLR 103 Section 426- On appeal, the learned Additional Sessions Judge rejected the appeals and directed the petitioners to surrender before the Trial Court to serve out the sentence. Accordingly the petitioners surrendered to the Trial Court and applied for bail to prefer revision to this Court and the learned Magistrate granted them bail by order dated 23.7.90 up to 12.8.90. The petitioners preferred the present revisional application on 1.8.90 and they were allowed to continue on the same bail by order dated 5.8.90 at the time of issuing the rule with a direction to file an application for bail as the learned Magistrate granted them bail without any legal authority. In this connection it may be pointed out that after the appeals of the petitioners were dismissed, the Appellate Court could grant them bail on their prayer under section 426 of the Code of Criminal Procedure, but the Magistrate had no authority or jurisdiction to grant them bail under that section or any other section of the Code of Criminal Procedure. The accused-petitioners could obtain bail from the Appellate Court or from this Court and not from the Trial Court which has become functus officio after the filing and disposal of the appeal by the Appellate Court. It seems that the Magistrates concerned are not aware of the legal position and similar cases came to my notice; for an example in Criminal Revision No. 640 of 1990 also the Magistrate granted bail for preferring revisional application to this Court after the accused persons surrendered to undergo the sentence of imprisonment as per direction of the Appellate Court. DLR 43 (HD) 321 Section 98- 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) T,he 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 iearned 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 liabie to be dismissed not being sustainable in the eye of law.--(Para 26) Alhaj Md. Mahtab Hossain Molla Vs. State & anr. (Kashefa Hhussain,) 11 SCOB [2019] HCD 102