Important Rulings On Criminal Laws

Anti-Corruption Commission Act (V of 2004) Anti-Corruption Commission Act (V of 2004) Sections 19 and 20 It is well settled that ACC has authority to issue notice for the purpose of inquiry and investigation. [73 DLR 34] Code of Criminal Procedure (V of 1898) Section 476 Since as per claim of the petitioner, the inquiry officer and others made phone calls and talked with the petitioner and his people with malafide intention to cause harassment to the petitioner and with a purpose of gaining something illegally from the petitioner and since a question has been raised as to the genuineness of the document, the allegation with regard to phone calls and conversations is required to be inquired by the probe committee to be formed by the Anti Corruption Commission and the allegation is required to be inquired by the Registrar, High Court Division, as per the provision of section 476 of the Code. [73 DLR 34] Code of Criminal Procedure, 1898 Schedule II, Colum, 4 Column 4 of the Schedule II of the Code relating to the offences against other laws provides that warrant of arrest shall be issued against the accused persons if the offence is punishable with imprisonment for not less than two years and not more than five years. Since the offence in question is punishable with imprisonment upto 5 years there is no illegality in passing an order of issuance of warrant of arrest against the accused-persons. Shainpukur Holding Ltd. Vs Security Exchange Commission, 18BLD (HCD) 61 Section—1 It provides the procedure for trial of criminal cases in Bangladesh and lays down that the Code of Criminal Procedure extends only to Bangladesh. Abdul Haque Vs. The State, 14BLD (HCD)204 Section—3(h) Complaint—Complaint by an Attorney It is a settled principle of criminal law that any person having knowledge of any criminal offence may set the law in motion by making a complaint to the appropriate authority even though he may not be personally injured or affected by the commission of the offence. Where there is a General Power of Attorney authorising the power-of-attorney-holder to sign the complaint and appear and act on behalf of the grantor in all Courts, the attorney is entitled to do every necessary thing in that connection on behalf of the grantor. In the instant case the signing of the petition of complaint by and examination under section 200 Cr.P.C. of Anisul Hoque on behalf of his father Shamsul Haque were thus perfectly valid and proper. Tamizul Haque Vs. Anisul Haque, 16 BLD(AD)206 Section—4 Information of certain offence obligatory Section 44 of the Code of Criminal Procedure imposes a legal duty upon every person aware of the commission or of the intention of any other person to commit any of the offences specified therein to give information thereof forthwith to the nearest Magistrate or Police Officer. Such provisions have been made so that the perpetrators of specified crimes are brought to book and are not suppressed by the persons knowing about them. Md. Shafique Miah Vs. The State, 17 BLD(AD)284 Section—4(h) ‘Complaint’ The word ‘report’ in section 25 of the Securities and Exchange Commission Ordinance instead of the word ‘complaint’ signifies that cognizance of an offence under the Ordinance can be taken only on the basis of a ‘complaint’ as defined in section 4(h) of the Code. In the instant case cognizance was taken on the basis of extracts of a report submitted by an enquiry committee and not on the basis of any report submitted by the Executive Director who merely presented the extracts of that report before the C.M.M. Shainpukur Holding Limited Vs. Security Exchange Commission, 18BLD(HCD)61 Sections—4(m) and 561A ‘Judicial Proceeding—Proceeding ‘before a Court starts after the Magistrate takes cognizance of an offence on police report or on complaint. Before such cognizance there is no proceeding that may be quashed under section 561A Cr. P. C. Quashing of a proceeding can be made even at the initial stage just upon taking of cognizance by the Magistrate when facts and circumstances of a case justify it. Mubashwir Ali and others Vs. The State, 14BLD(HCD)566 Sections—9(1)(2) Court of Sessions Section 9(1) of the Code gives the Government power to establish a Court of Sessions for every Sessions Division and appoint a Judge of such Court. This Judge is none else than the Sessions Judge which is an office. Section 9(2) of the Code gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Therefore the power of the Government is pervasive over: (1) the establishment of a Court of Sessions, (2) appointment of a Judge of a Court of Sessions and (3) determination of the place or places where the Court of Sessions shall hold its sitting. This is a flexible power and cannot be restricted to particular situations. Sayeed Farook Rahman Vs The Sessions Judge of the Court of Sessions, Dhaka and others, I 7BLD(AD)177 Section—9(2) If there is a special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of the Court of Sessions and the new place indicated in the special order is meant for trial of oniy that case or class of cases which the special order specifically provides. Sayeed Farook Rahman Vs The Sessions Judge of the Court of Sessions, Dhaka and others, 17BLD(AD)177 Ref: AIR 1988 (SC) 1838 Cited. Section—18(2) Appointment of Additional Chief Metropolitan Magistrates When Government allocated function under sub-section (7A) of section 167 Cr.P.C. to the Additional Chief Metropolitan Magistrate and he passed the impugned order of revival, such an order cannot be held to be illegal. Government of Bangladesh Vs. Shah Alam, 15BLD(AD)l08 Section—21 From a perusal of the provisions of section 21 of the Code of Criminal Procedure it appears that the functions performed by C.M.M. Dhaka, are mainly judicial functions in addition to some administrative works, which are incidental to the post and therefore the post of C.M.M. Dhaka is essentially meant, for performing judicial functions. Md. Idrisur Rahman Vs Md. Shahiduddin Ahmed and others, 19BLD(HCD)291 Section—35A The proviso of the section provides that deduction from the sentence cannot be allowed when minimum period of sentence as provided in the law. Habibur Rahman alias Raju Vs The State, 20BLD(HCD )177 Sections—61 and 167 From a combined reading of sections 61 and 167 of the Code it is clear that an accused cannot be detained in the custody of the police for a longer period than under the circumstances of the case is found reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for journey from the place of arrest to the Court of the Magistrate. In passing an order of detention touching the liberty of a person, the Magistrate should apply his judicial mind into the facts and circumstances of the case in determining whether circumstances of the case really call for a detention in police custody. Faruk Mahajan and others Vs The State, 17BLD(HCD)15 Section—87 and 88 Proclamation for an absconding person and attachment of his property Under section 87 the Magistrate is competent to publish a written proclamation requiring the accused to appear before him in connection with a case within a specified time when he has reason to believe that the person against whom a warrant has been issued by him has absconded or is concealing himself so that the warrant cannot be executed. The prerequisites for the publication of a proclamation are the issuance of an warrant and absconsion or concealment of the accused to evade the execution of the warrant. Attachment under section 88 Cr. P. C. of the property, moveable or immovable, or both, belonging to the proclaimed person can be made only after the order of proclamation issued under section 87 of the Code has been duly made. In the absence of any material for invocation of the provisions of sections 87 or 88 Cr.P.C. the order of proclamation and attachment is illegal. Maulana M. A. Manna and others Vs. The State, 15BLD(HCD) 151 Section—94 Summons to produce document or other thing It is not necessary for the purpose of enquiry into a complaint that a formal case upon lodging an F.I.R. will have to be filed before a police officer or an Anti-Corruption Officer, who can apply for permission to the Sessions Judge for production and seizure of any document. But before according permission, the Sessions Judge is to satisfy himself that the Police Officer or Anti Corruption Officer is investigating on an alleged crime and is not merely fishing for information to harass, intimidate or coerce innocent persons. In the present case, there being a specific information in respect of alleged defalcation of a huge amount of money by several importers in collusion with Bank officials and in the face of reference that Bank’s own investigation has revealed that there has been a defalcation, the impugned order of the Sessions Judge directing the Bank to deposit to the Bureau of AntiCorruption, Chittagong all connected records regarding the removal of goods imported on obtaining loan from the said Bank, which were pledged with the Bank, calls for no interference. Messrs Hamidia Oil Mills Vs. District Anti Corruption Officer, Chittagong, 16BLD (AD)220 Section—94 It authorises the Court or any competent police officer to ask a person, in whose possession or power certain document or thing is believed to be, which is necessary for the purpose of any investigation, enquiry, trial or other leaI proceedings, requiring such person to produce it at the time and place mentioned in the summons or order. But there is no provision for seizure of such document for facilitating an investigation when no such case is pending before any Court. The learned Sessions Judge committed an illegality in passing the impugned order according permission to the police to seize records from the Bank’s custody without finding a prima facie case. Arab Bangladesh Bank Ltd. Vs. Md. Shahiduzzaman, Deputy Director (Ta: Ka:4), Bureau of Anti-Corruption, Dhaka and others, 18BLD(HCD)167 Section—94 General Clauses Act, 1897 Section—3(16) Anti-corruption Manual Articles—31 and 50 Section 94(1) of the Code speaks of production of document or thing in the possession or in the power of the persons to whom the summons or the order is issued. The words ‘production’ and ‘possession’ clearly indicate that what is to be produced must be a tangible thing. So far as the word ‘document’ is concerned section 3(16) of the Act defines that ‘document’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those which is intended to be used, or which may be used, for the purpose of recording the matter. In the instant case the impugned order Annexure-B asked the petitioner under section 94 of the Code of Criminal Procedure and Articles 31 and 50 of the Anti-corruption Manual to provide information of the names of all the cases which he handled from 1.3.93 to 20.3.94 and the position of those cases. Such information as asked for does not constitute a document. Mohammad Imtiazur Rahman Farooqui Vs. Bureau of Anti-Corruption, 19BLD (HCD) 382 Ref: 42DLR(HCD)43; 49DLR (HCD) 599—Cited Section—94(1) General Clauses Act, 1897 (X of 1897) Section—3(16) Anti-Corruption Manual Articles—31 and 50 Section 94(1) of the Code speaks of production of document or thing in the possession or in the power of the persons to whom the summons or the order is issued. The words ‘production’ and ‘possession’ clearly indicate that what is to be produced must be a tangible thing. So far as the word ‘document’ is concerned section 3(16) of the Act defines that ‘document’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one of those which is intended to be used, or which may be used, for the purpose of recording the matter. In the instant case the impugned order Annexure-B asked the petitioner under section 94 of the Code of Criminal Procedure and Articles 31 and 50 of the Anti-Corruption Manual to provide information of the names of all the cases which he handled from 1.3.93 to 20.3.94 and the position of those cases. Such information as asked for does not constitute a document. Mohammad Imtiazur Rahman Farooqui (M.I. Farooqui) Vs. Bureau of Anti-Corruption and others, 19BLD(HCD)382 Ref: 42 DLR (HCD) 43; 49 DLR (HCD) 599—Cited Section—99B Remedy against forfeiture (of a book) having been provided under the section, whether the Government is required to issue any notice to the author or the publisher before passing the impugned order. Held: Under the scheme of law of forfeiture under the Code of Criminal Procedure, the remedy against forfeiture having been provided under section 99B for setting aside the order of forfeiture, the Government is not required to issue any notice to the author or the publisher of the book giving them reasonable opportunity of being heard before passing the impugned order. Bangladesh Anjumane-Ahmedia, represented by its Secretary, Umoor-e-Ama Vs. The Secretary, Ministry of Home Affairs, Government of Bangladesh. 13BLD(HCD)45 Section—99A(1)(C) To forfeit a publication it is enough if it “appears to the Government” that a certain publication contains any matter as referred to in sub-section (I) of section 99 of the Code. The Government is only required to state by Notification in the Official Gazette the grounds of its opinion, not its satisfaction for formation of opinion. Sadaruddin Ahmed Chisty Vs Bangladesh and others, 18BLDC4D.)210 Section—100 Whether the section empowers a Magistrate to issue search warrant for the recovery of a kidnapped child. Held: Section 100 (of the Cr.P.C) empowers a Magistrate to issue search warrant for the recovery of the child who has been kidnapped and wrongfully confined. A direction issued by a Magistrate to the same effect is not in conformity with the provision of section 100 Cr.P.C. Dr. G.M. Enamul Hoque Vs. Mosammat Rafia Begum and another, 13BLD (HCD)483 Sections—102 and 103 Search for and ‘ seizure of incriminating articles without strictly following the provisions of sections 102 and 103 Cr.P.C. can not be held to be legal. (ref. 26 DLR 297) Md. Mokhlesur Rahnian and another Vs.The State, 14BLD(HCD)127 Section—103 The provisions of the section, whether are designed to create a safeguard against possible chicanery and concoction on the part of the investigating officer? The provisions of section 103 Cr.P.C. are designed to create a safeguard against possible chicanery and concoction on the part of the investigating officer and it is obligatory on the officer concerned to execute a search warrant to call on and get two or more respectable inhabitants of the locality to witness the search to ensure that the search is conducted honestly. Subodh Ranjan and others Vs. The State, 13BLD(HCD)430 Ref: PLD 1979(Lahore)279; 26DLR 297; PLD 1975 (SC) 607, 609—Cited Section—103 Search and Seizure In view of the fact that the pipe guns in question were recovered from a sugarcane field and the place was a public place accessible to the public and the 3 seizure list witnesses did not prove the recovery of the fire arms from the possession of the accused, the recovery of the fire-arms from his exclusive possession becomes doubtful. Golam Mostafa(Bara) Vs. The State, 14 BLD(HCD)317 Ref: 21 D.L.R. 684; 44 D.L.R. 159-Cited. Section—103 Search and Seizure The provisions relating to search and seizure provided in sub-sections (1) (2) of Section 103 Cr.P.C. are mandatory and any search and seizure without strictly complying with the aforesaid provisions of law must be held to be illegal. The requirements of law are that the entire search from the beginning to the end must be conducted in presence of at least two respectable local inhabitants. Habibur Rahman alias Jane Alam Vs. The State, 15BLD(HCD) 129 Section—103 Search While conducting search of the baby taxi leading to the alleged recovery of contraband phensidil syrups, the provisions of section 103 Cr. P. C. are required to be complied. Md. Farque Hossain and 2 others Vs. The State, 15BLD(HCD) 163 Section—103 Search and Seizure The police are required to strictly follow the laws and rules relating to search and seizure of incriminating articles. Non-compliance with the mandatory provisions of section 103 Cr.P.C. and Regulation. No. 280 of the Police Regulations, 1943 make search and seizure illegal. Md. Zulfiqure Ali alias Kazal Vs. The State, 15BLD(HCD)570 Sections—103 and 165 When the accused admits that he has arms in his possession and arms are actually recovered at the instance of the accused, there is no question of following the provisions of sections 103 and 165 of the Code of Criminal Procedure. Kamruzzaman alias Babul Sikdar Vs. The State, 15BLD(HCD)486 Sections---221 and 232(2) Charge was framed against the 2 appellants only under section 201 of the Penal Code and no charge was framed against them under sections 302/34 of the Penal Code. The conviction of the appellants under sections 302/34 of the Penal Code is illegal and not maintainable in law. Muslim and ors Vs. The State, 15 BLD (HCD)298 Sections—144 and 145 When the Magistrate initiates a proceeding under section 145 Cr,P.C. on the basis of a police report, which was called for in connection with an application filed under section 144 Cr.P.C., it is to be held that there was materials before the Magistrate to Act upon and no exception can be taken against it as being beyond 60 days after the passing of the first order under section 144 Cr.P.C. Md. Esrail and others Vs. Md. Ali Ashgar and others, 15BLD(AD) 117 Ref: 5DLR 162D—Cited Sections—144 and 145 The exercise of power under section 144 of the Code of Criminal Procedure is discretionary while under section 145 It is mandatory as the words “Magistrate may” and “he shall” have been used respectively in section 144 and 145. Thereafter, whether action has previously been taken under section 144 or not, the Magistrate must act under section 145 if condition as to its application exists and must take action either in suppression or in continuation or in the absence of any order passed under section 144 of the Code. Md Ali Asgar Vs Md Esrail and others, 19BLD(HCD)51 7 Ref: 5DLR 1 62D—Not applicable Section—145 The basic requirement for drawing a proceeding under section 145 Cr.P.C. is a dispute over a land likely to cause breach of the peace. If the Magistrate is satisfied that there is an apprehension of breach of the peace and accordingly he draws the proceeding, no civil Court shall interfere with it. If, however, the civil Court has already passed any order of temporary injunction or any order regulating possession of the disputed property, the Magistrates jurisdiction is ousted. But mere filing of a civil suit does not oust the jurisdiction of the Magistrate. Monir Ahmed Vs. Md. Mohan alias Fazle Elahi 14BLD(AD)246 Section—145 On the complaint of one Abdul Latif the police started a regular case for violation of Cinematography Act and Excise Act and submitted chargesheet against the accused respondent. Under purported exercise of power under section 145(1) of Cr.P.C. the learned Magistrate directed the police to seal the cinema hail in question. After hearing the contending parties the learned Magistrate passed an order for keeping the cinema hail under attachment till title in respect of the said cinema hail is decided by a competent civil Court. When the order of attachment has no rational and legal relationship with any legal proceeding either under section 145 Cr.P.C. or under the Cinematography Act, the only measure the learned Magistrate could take in the case was to retrace his irregular steps by giving back the cinema hail to possession of the person from whom it was sealed. Md. Mobarak Hossain (Ratna) Vs. Abdul Quddus and another, 15BLD(AD)157 Section—145 In a proceeding under section 145 Cr. P. C. it is for the Magistrate to decide upon taking evidence which party was in possession of the disputed property at the time of making the initial order. If the finding of the Magistrate as to possession is based on evidence before him from which he could reasonably come to such a finding, he is the only judge as to whether the materials before him were sufficient or not. The satisfaction of the Magistrate cannot be replaced by the satisfaction of the revisional Court unless the order of the Magistrate is perverse and it has occasioned a miscarriage of justice. Md. Soleman Vs. A. Barek Khalifa and others, 15BLD(HCD) 198 Section—145 ‘Satisfaction’ of the Magistrate in drawing proceedings Mere non-mention of the word “satisfaction” in the order does not make an order under section 145 Cr.P.C. without jurisdiction but such satisfaction must be present in the grounds stated in his order. A Magistrate’s satisfaction cannot, however, be presumed extrinsic to his order but it must be gathered from the express statements made in the order itself. In purported exercise of jurisdiction under section 145 Cr. P.C., without drawing any formal proceeding thereunder on fulfilment of necessary conditions, the learned Magistrate illegally attached and sealed the Cinema Hall in question from the possession of the petitioner and subsequently he cancelled the said order. He was, therefore, required to restore to the petitioner the possession of Cinema Hall. This was just and proper to rectify his own mistake. Abdul Quddus Vs. The State and another, 15BLD(HCD)554 Sections—145 (4) and 146 When a Court is uncertain about the possession of the contending parties in a case under section 145 (4) Cr.P.C. it can attach the case land under section 146 Cr.P.C. until a competent civil Court determines the rights of the parties thereto or the person entitled to possession thereof. Shamsuddin alias Shamsuddoha Vs. AmjadAli, 15BLD(HCD) 197 Section—145 When a civil Court is already seized with the subject-matter of dispute and has also passed an order regulating possession thereof or in a case in which a decree for possession has been passed or a decree for permanent injunction has been granted by a competent civil Court, the jurisdiction of a Magistrate to act under section 145 Cr. P.C. is ousted. To meet any emergency the Magistrate may, however, act under sections 107 and 117 Cr. P.C. for preventing breach of the piece. Mozaffar Ahmed Vs The State and ors. 17BLD(HCD)364 Ref: 45DLR(AD)31; 35DLR 180—Cited Section—145 A Magistrate taking action under section 145 Cr.P.C. must be satisfied that there exists an immediate apprehension of the breach of the peace between the contending parties concerning the disputed property. But when a civil Court is already in the seisin of the matter regulating possession of the disputed property, the jurisdiction of the criminal court to deal the property is ousted. Md. Taizuddin Miah and others Vs. Md. Abdul Kader and another, 18BLD(HCD)77 Sections—145 and 561A When the civil Court is already seized with the question of regulating possession of the land between the same parties the criminal court has no jurisdiction to draw any proceeding under section 145 Cr.P.C. and the Magistrates jurisdiction is completely ousted. Abdul Majid Mondal Vs The State and another, 19BLD(HCD)534 Ref: 5 1DLR(1999)(AD) 14—relied upon Jurisdiction of a Magistrate under section 145 Cr. P.C. The jurisdiction of a Magistrate under section 145 Cr.P.C—under what circumstances is ousted? Proceedings under section 145 Cr. P.C. As to proceedings under section 145 Cr. P. C., whether it is erroneous to designate the complainant as an informant. Held: (i) There is no hard and fast rule as to when and at what stage a plaint can be rejected. It all depends upon the facts and circumstances of each case. As a general rule, an application to reject a plaint ought to be filed at the earliest possible opportunity, so as not to fritter away time, energy and money on a fruitless litigation. (ii) If a civil Court is already seized with the subject-matter of a dispute and has also passed on order regulating possession thereof or in a case in which a decree for possession has been granted or a decree for permanent injunction has been passed, the jurisdiction of a Magistrate under section 145 Cr.P.C. is ousted, the only saving being that action can be taken under section 107 and 151 Cr.P.C. to prevent breach of peace. But no order by a criminal Court for attachment of the property under section 145 Cr.P.C. can validly be made. (iii) Criminal prosecutions for breach of statutory rules of corporate bodies and preventive measures taken to maintain peace, where disputes as to immovable property are involved, do not stand on the same footing. But even when criminal prosecution is involved, a suit is not completely barred. (iv) As to proceedings under section 145 Cr.P.C. it is erroneous to designate the complainant as an informant, having regard to the provisions of that section. Once an information is brought to the notice of the Magistrate, he has to be satisfied that a dispute as to immovable property is likely to cause a breach of peace. Further proceedings which he starts are not proceedings in the interest of any private party but in the interest of public peace. It is highly doubtful if a proceeding under section 145 Cr.P.C. can properly be termed as a “criminal matter” within the meaning of section 56(e) of the Specific Relief Act. Jobeda Khatun Vs. Momtaz Begum & others 13BLD(AD)31 Ref: AIR 1924(Nag)80; 23 DLR(SC)14; 36 DLR(SC)14; 36 DLR(AD)44; In re. N.P. Essappa Chettiar, A1R1942 (Mad) 756; A.I.R. 1924(Cal.)334; AIR 1 928(Cal)464; ILR 1950 All 543; AIR 1959(SC)960; (1909) 21C266; AIR 1938(Pat) 606; 1970 UJ(SC)75; Twenty one year’s Supreme Court Digest, 1950-70 by Sk. Agarwal, volume 2 (1972) at page 662— Cited. Section—154 Embellishment of FIR case and consequence—Due to the inconsistencies and embellishment in the FIR case, the prosecution case becomes shaky and doubtful. Haji Md. Jamaluddin and others Vs. The State, 14BLD(HCD)33 Ref: 12PLD 1960 Dhaka, at page 109; 31 DLR (HC) (1979) 16; 34 DLR (HCD) (1982) 208—relied Section—154 Questionable delay in lodging the F.I.R. without any satisfactory explanation makes the prosecution case suspicious. In such a case, the chance of manipulation in the prosecution case cannot be ruled out. Abdul Latif alias Budu and others Vs.The State, 14BLD(HCD)94 Rule of Prudence Rule of prudence requires that there should be some independent corroboration of the evidence of interested witnesses so as to inspire confidence in the mind of the Court. This is more so when bitter enmity exists between the parties. Abdul Latif alias Budu and others Vs. The State, 14BLD(HCD)94 Non-seizure of the Torch Light Non-seizure by the Investigating Officer of the torch light by which the witnesses allegedly recognised the accused persons renders the prosecution case unacceptable. Abdul Latif alias Budu and others Vs. The State, 14BLD(HCD)94 Section—154 An F.I.R. may not contain the details of the occurrence in all cases. Omission to mention some material facts in the FIR does not make it false. Khandkar Md. Moniruzzaman Vs. The State, 14BLD(HCD)308 Section—154 First Information Report When the investigation of a case has already started prior to the lodging of the ejahar, it cannot be treated as the First Information Report and it must be kept out of consideration of the Court. Nowabul Alam and others Vs The State, 15BLD(AD)54 Section—154 First Information Report Non-mentioning of the names of the accused persons or some other material facts in the F.I.R. lodged by a person who is not an eye witness to the occurrence, is not fatal to the prosecution. The prosecution case will not suffer from any infirmity if such absence can be satisfactorily explained. Forkan alias Farhad and another Vs. The State. 15BLD(AD) 163 Section—154 It is consistent with the safe administration of justice to rely on the testimony of witnesses whose presence is mentioned in the F.I.R. Dalim and another Vs. The State, 15 BLD(HCD) 133 Section—154 F.I.R. lodged after 35 hours of the occurrence, although the Thana is only about 1/2 mile from the hospital where the victim was taken for treatment soon after the occurrence, is a belated F.I.R. and it provided opportunity to the prosecution for making embellishments. Md. Abul Kashern Vs. The State, 15BLD (HCD)205 Section—154 From the FIR itself as well as from the deposition of the information that the FIR was lodged long after 16 hours from the time of alleged recovery of the incriminating articles, though it has been proved that the place of occurrence is three kilometres off from the police station and that the informant and his party went to the place of occurrence in a jeep, so, the delay of 15 hours in lodging the FIR is no, doubt, inordinate and in absence of any explanation for such inordinate delay, it is very difficult to accept the genuineness of the FIR in question. Aslam Jahangir Vs The State, 20BLD (HCD)426 Section—154 Use and importance of F.I.R. F.I.R. cannot be used as substantive evidence. It can at best be used to contradict or corroborate its maker and none else. In some cases, F.I.R. being the earliest recorded version of the prosecution case, it can be looked into for assessing the whole prosecution case and to see if there are embellishments in it as the prosecution case passes through stages. Abdus Subhan Vs. The State, 15BLD (HCD)281 Section—154 First Information Report—Its object and legal incidence The object of the First Information Report is to make known at the earliest opportunity to all as to what the case of the informant is against the alleged offenders, known or unknown. It is always viewed with grave suspicion when the story made at the trial differs in material particulars from the story set out in the F.I.R, which is the first recorded version of the prosecution case. Kamala and others Vs. The State, 15BLD(HCD)449 Section—154 F.I.R is not a substantive piece of evidence The First Information Report is not a substantive piece of evidence and it can be used only for the purpose of corroborating or contradicting the maker thereof. Its value lies in being the earliest recorded version of the prosecution story Md. Ali Ashraf and another Vs Md. Seraj Master and others, 17BLD(HCD)296 Section—154 First Information Report/First Information Report is not the encyclopaedia It is neither the beginning nor the end of every case. It is only a complaint to get the law in motion. It is only an initiative to move the machinery and to investigate into a cognizable offence. It is only at the investigation stage that all the details can be gathered and filled up. The first information report cannot be treated as the first and the last version of a prosecution case. Al Amin Vs. The State, 19BLD(HCD)307 Section—154 The very purpose of recording a first information report is to indicate what was the manner in which the occurrence was related when the case was first started and also to show what were the facts given out immediately after the occurrence and reported to the police at the earliest available opportunity. The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of the trial. A comparison between two such versions of the case is not only permissible, but imperative in the context of the circumstances. The State Vs Syed Habibur Rahman @Rocket, 20BLD(HCD)26 Section—154 Evidence Act, 1872 (1 of 1872) Section —3 Although the dead body of the deceased having been discovered by the PW 15 and mother of the victim hanging from the branch of the small Jack fruit tree, not possible to commit suicicL by hanging, with marks of violence on the person of the deceased as stated in the inquest report, notwithstanding that a case of unnatural death was recorded by the police but after a lapse of 13 days an FIR was lodged without proper explanation of such delay when the vital piece of information regarding the condemned prisoner was seen standing and then carrying the victim girl on his shoulder on the bank of the river was not mentioned in the First Information Report lodged by PW1,13 days after the incident which belies the evidence of PW 3 regarding happening of such incident and hence the evidence of PWs 1, 3, 4, 5, 8, 9 and 15 cannot be relied on and hence the prosecution has failed to prove the charge against the condemned prisoner beyond reasonable doubt and as such he is entitled to get benefit of doubt and is acquitted. The State Vs Syed Habibur Rahman @ Rocket, 20BLD(HCD)26 Section—155(2) and 561A Non-compliance of the mandatory provisions of section 155(2) of the Code gives the petitioner opportunity in making out a case for quashing the proceeding under section 561A of the Code. Monotosh Dewan Vs The (HCD)265State, 17BLD Sections—156, 158 and 173 Supplementary Chargesheet and Further Investigation Sub-section 2 of Section 173 of the Code and Further provides that a superior police officer may direct further investigation, pending the order of the Magistrate, but such direction can be given only where the superior police officer had been appointed under section 158 of the Code. Further investigation may also be held under sub-section (3B) of section 173 after submission of police report under sub-section (I) of section 173 of the Code, if the officer- in-charge of the police station obtains further evidence in the mitter. In any case, if the police after holding further investigation submit a chargesheet against the remaining accused or others, that chargesheet is called a supplementary chargesheet and not a substituted chargesheet. The learned Sessions Judge acted illegally in reopening the case by directing a further investigation on the prayer of the accused. Sukhil Kumar Sarkar Vs. The State and others, 15BLD(HCD)311 Ref: 27DLR (HCD) 342; 37 DLR(HCD) 185-Cited Sections—156(3), 173,190 From a reading of section 156 together with section 190(I), it appears that a Magistrate instead of taking cognizance himself of an offence upon receiving a complaint, may send the complaint to the police for investigation by treating the complaint petition as the first information report. The report of the police submitted u/s 173 Cr.P.C. recommending discharge of the accused is never binding upon the Magistrate. The Magistrate instead of accepting the final report by the police may, either of his own accord or on receiving a naraji petition from any affected person, direct the police to make further investigation of the case so as to collect further evidence, if any, warranting sending up to the Court th accused persons mentioned in column 2 of the police report. The petition for further investigation made by the accused persons in the instance case is a misconceived one, which does not fall within the purview of section 156(3) Cr.P.C. Sukhil Kumar Sarkar Vs. The State ant others, 15BLD(HCD)311 Section—161 Omission to mention about dying declaration by any witness, whether is serious and glaring one. An omission by witnesses to mention about dying declaration when examined under Section 161 of the Code of Criminal Procedure, is serious and glaring one and, as such. amounts to contradiction, which makes the statements of the witnesses worthless. Kuti Meah and others Vs. The State, 13BLD(HCD)572 Section—161 Statements of witness recorded u/s. 161 Cr.P.C. after 111 days of the occurrence and no explanation given for such inordinate delay—weight of the evidence of such witnesses diminished—It is unsafe to rely on such evidence. Haji Md. Jamaluddin and others Vs. The State, 14BLD(HCD)33 Section—161 Inordinate delay in recording the statement of witnesses by the 1.0. under section 161 Cr.P.C. renders their evidence shaky. Zafar and others Vs. The State, 14BLD (HCD)28 Section—161 A statement under section 161 of the Code is not a substantive evidence. In such a statement under section 161 of the Code the witness is required to state what he saw and heard about the occurrence soon after. 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 @ Ratan Vs The State, 20BLD(AD)249 Section—161 Omission of vital fact by the witnesses recorded 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 following 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 alias Iltzbib, 20BLD(HCD)467 Ref: AIR 1952 (Allahabad)289; A1R1963 (Assam)151 and AIR 1962 (Allahabad) 528— relied Sections—161 and 162 Statement recorded under section 161 Cr.P.C. is no evidence at all as such a statement is made before a police officer in the absence of the accused and it is not signed by the maker. Statements under section 161 Cr.P.C. can only be utilised by the defence under section 162 Cr.P.C. to contradict the witnesses in the manner provided by section 145 of the Evidence Act. Abdus Subhan Vs. The State, 15BLD (HCD)281 Ref: PLD 1957 (md) 197; 42 DLR (AD) 186; 17DLR(SC)40; 35DLR(AD)303; 22DLR 620;—Cited. Section—164 It is well settled that a statement made. under section 164 Cr.P.C. is never a substantive evidence. It may be used only for corroborating or contradicting a witness. Consequently, when a witness completely resiles at the trial from his statement made under section 164 Cr.P.C. and gives a different story to the Court, no reliance can be placed upon the statement recorded under section 164 Cr.P.C. Md. Jiaur Rahman Vs. The State, 15 BLD JHCD)459 Section—164 Confessions The judicial consensus is that the requirements of the mandatory provisions of section 164 of the Code are to be strictly complied with before a confession is admitted into evidence and is used against the accused. The recording Magistrate is bound to make a real and substantial inquiry to ascertain the voluntariness of the confession. In doing so he must put questions to the confessing accused to find out if the confession is made out of repentence or for any other good reason or whether it is the result of torturing or tutoring by somebody or whether it has been caused by any inducement, threat or promise. Alauddin Khan Pat han and others Vs The State, 19BLD(HCD)74 Section—164 The unrestricted confession and the plea of guilt of the accused at the time of his examination under section 342 Cr.P.C. can legally form the sole basis of his conviction. Abdul Awal and others Vs. The State, 14BLD(HCD)187 Section—164 Recording of Confessional Statement A Magistrate recording a confessional statement under section 164 Cr.P.C. is required to strictly comply with the provisions of the section and he must make a real and substantial enquiry to ascertain as to whether the confession is voluntary and true. Putting a few questions to the confessing accused in a casual manner cannot be deemed to be sufficient to hold that the confession is true and voluntary. The State Vs. Md. Musa alias Musaiya alias Shaifur Bap, 15BLD(HCD)169 Section—164 Statements made by witnesses and recorded by a Magistrate u/s 164 Cr.P.C. cannot be conceived of as confessions. The learned Additional Sessions Judge under a misconception of law treated the statements of witnesses as confessional statements and misdirected himself in convicting the appellants on such wrong view of law. Muslim and others Vs. The State, 15 BLD(HCD)298 Section—164 When a witness in his statement recorded by a Magistrate under section 164 Cr.P.C. omits to state some vital facts concerning the overt acts of the accused persons, the evidence of such a witness before the trial court cannot be accepted beyond doubts. But the requirement of law is that the attention of the witness will have to be drawn to the relevant facts. Jalal and 3 others Vs. The State, 15BLD (HCD)588 Section—164 Confession When it is found that the confessing accused was kept in police custody for 2 days preceding his production before the Magistrate for recording confession such a confession must be taken with a grain of salt. In the confessional statement the accused implicated himself by stating that he simply abetted the principal offender Golap Hossain in causing death of the victim. This Golap Hossain has been acquitted at the trial. The appellant within 10 days of his confession retracted it in writing complaining that it was neither true nor voluntary and it was obtained from him under duress. Under such circumstances the alleged confession cannot be taken into consideration to lend assurance to other evidence to connect the appellant with the alleged offence. Abdul Jabar Vs. The State, 16BLD (HCD)552 Section—164 Prolonged detention in police custody before recording confession Prolonged police custody immediately preceding the making of confession is sufficient, if not otherwise properly explained to brand it as involuntary. The detention of the confessing accused in the thana hajat for 3 days without any order of remand from the Magistrate renders it totally unacceptable. Faruk Mahajan and others Vs The State, 17BLD(HCD)15 Section—164 Confession When confessional statements on their face appear to be disjointed versions of the prosecution case having nothing in common with the evidence of the prosecution witnesses, such confessional statements cannot be accepted as a foundation for conviction. Moreover, the accused appellants were sent to the police custody after recording of the confessional statement and not to the judicial custody, thereby leaving enough scope for lurking suspicion in the mind of the confessing accused that they would be tortured in police custody if they did not make the confessional statements. Nil Ratan Biswas Vs. The State, 17BLD (HCD)613 Ref: PLD 1958 (Lahore) 559; PLD 1964 (WP)(Peshawar) 1; PLD 1960 (Karachi) 674— Cited. Section—164 Failure to comply with requirement of the form 6, 8 and 9 and giving a certificate in his own hand do not vitiated the confessional statements because at best it will mean violation or non-compliance of some circulars. On perusal of column 6 it is found that necessary questions were put to the condemned prisoner and he answered them all in the affirmative. As to column 9 it appears that this column is not applicable since the Magistrate found that the statement made by the condemned prisoner was voluntary. The State Vs Bellal Hossain, 20BLD (HCD)45 Ref: State Vs. Munir, BLT (Special issue) 1995 Page 41; Syed Sharifuddin Pirzada Vs. Sohbat Khan and others, PLD 1972 (SC) 363— relied. Section—164 Objection of the use of confessional statement The objection on the use of certain confessional statements recorded in connection with another case and used by the investigation officer in the instant case may be raised at the time of trial and the admissibility of these may be decided by the trial court at that time. The objection on the recording of the statements under section 161 of the Code and the admissibility of the confessional statements can not therefore be decided in this petition. Major (Retd) Baziul Huda Vs The State, 20BLD (AD)236 Section—164 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 the confession. The State Vs Bellal Hossain, 20BLD (HCD)45 Ref: Hazrat Ali Vs. State, 44DLR (AD)51—relied Sections—164 and 364 Evidence Act (I of 1872) Section—80 When a confessional statement has been recorded by a Magistrate after complying with the provisions of sections 164 and 364 Cr.P.C. the said confessional statement can be admitted into evidence by the trial Court under section 80 of the Evidence Act even without examining the recording Magistrate. Mosammat Amena Khatun Vs. The State and others, 14BLD(HCD)332 Section—164 Confessional statement The word assurance or caution though not a rule of law as such but is a rule of prudence. Such assurance or caution is necessary in case of long detention of the accused in the police custody before the confessional statement was recorded. The absence of such assurance or caution renders the confessional statement untrue and not voluntary and as such it cannot be used against the accused-appellant nor against the co-accused. The State Vs Ali Hossain,18BLD (HCD) 655 Ref: 8BLD(AD)109; 50 DLR17—Cited Sections—164 and 364 Formalities as provided under sections 164 and 364 of the Code have not been complied with in recording the confessional statement of the accused. It appears that the confessing accused made the confessional statement after coming from the police remand which in no way removes the doubt that the said confessional statement is the product of threat, coercion and physical torture. Moreover, there is no independent evidence to corroborate the same. The confessional statement appears to be exculpatory indicating no active part in the occurrence by the confessing accused and as such the same cannot be used against its maker. Conviction cannot be sustained on the basis of such a confessional statement. Md. Akbar Ali Vs. The State, 19BLD (HCD)268 Section—164(3) This sub-section, whether speaks of the manner of recording confession of an accused. Held: This sub-section speaks of the manner as to how a confession of an accused is to be recorded by a Magistrate. This is a mandatory provision and failure to comply with it shall make the confession invalid and unreliable. This provision of law along with provisions of section 364 of the Code of Criminal Procedure require to be strictly observed and followed to make the confession voluntary and true to be fit for reliance for convicting an accused on his confession. Abul Hossain and others Vs. The State, 13BLD(HCD)311 Section—164(3) The confessional statement was extracted from accused Abdul Ali by severe torture, and intimidation. This finds support from his statement under section 342 of the Code wherein he stated that he was several betean and he was in dying condition. It further finds support from the evidence of P.W. 29 Md. Mosharaf Hossain, Magistrate 1st Class who recorded dying declaration of accused Abdul All at 9-35 at night on the written requisition of Dr. M.A. Mannan at Sarail Upazilla Health Complex exhibit 24. From a reading of the deposition of P.W. 29 who recorded dying declaration it appears that the injuries of accused Abdul Ali were serious for which he gave a dying declaration on the day before the confessional statement by another Magistrate-cum T.N.O. was recorded. It is mysterious that although he was in the Thana Health Complex at 9-35 P.M. at night for recording dying declaration that is no discharge certificate from the Hospital and there is nothing on record that he was taken to police station and then to the Court on next day and under what condition. This depicts a picture that reflects high handedness of the investigating agency in this case. In such view of the matter exhibit 10, has been procured from its maker accused Abdul Ali condemed prisoner, by physical torture, threat and intimidation. This is partinent to note that in the confessional statement he did not implicate himself with the murder of Paritosh rather he stated that it was Razzaque who gave the blow and he further stated that no valuables were taken away from the boat. The State Vs Md. Abdul Ali and others, 20BLD(HCD)327 Section—164 (3) It provides that a Magistrate before recording any confession is required to explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him. In the instant case the learned Magistrate having not warned the confessing accused in terms of this mandatory provision of law, the confessional statement must be kept out of consideration. From the order sheet of the Upazila Magistrate it is seen that in reply to his requisition the Superintendent of Mymensingh Jail reported that the two appellants were admitted in the jail hospital for treatment on 8.2.1987 with multiple injuries on their person. They were admitted in hospital on the following day of recording of their confessional statements. The Investigation Officer lied in saying that the confessional statements of the accused were recorded on 6.2.1987 although the record shows that the confessions were recorded on 7.2.1987. Under these circumstances it is not unreasonable to hold that the confessions were extracted by subjecting the appellants to physical tortures. The confessions must be held to be involuntary. Bachhu alias Ekrainul Hoque and others Vs. The State, 14BLD(HCD)589 Section—166(3) It authorises the police officer of one police station investigating a case to search any place in the limits of another police station if he has reason to believe that delay occasioned by requiring an officer-in-charge of that police station to make such a search might result in evidence of the commission of the offence being concealed or destroyed. Kamruzzaman alias Babul Sikdar Vs. The State, 15BLD(HCD)486 Ref. A.I.R. 1955 (Cal) 129; 44 DLR 159; 8 B.L.D.4 12—Cited Section—164(3) Columns 3, 4 and 8 of the prescribed form for recording confessions have not been filled up by the Magistrate. Therefore this piece of paper (confessional statement of the petitioner) is highly doubtful having no credibility and as such unworthy of consideration by any Court. Mrs. Jobaida Rashid Vs The State, 17 BLD(HCD)352 Sections—164, 173 and 548 Evidence Act, 1872 (I of 1872) Sections—74 and 76 An accused is not entitled to get copies of the statement under section 164 of the Code before filing Police Report under section 173 of the Code. A Magistrate recording a statement under section 164 of the Code, does so as a judicial officer and as such the statement is a public document as defined under section 74 of the Evidence Act. The provisions of section 74 and 76 of Evidence Act mainly provide means of proof of public documents but to examine the question as to entitlement of an accused to get copy of a document during the pendency of the investigation, the Code of Criminal Procedure, specially Chapter XIV should be peeped into. For the purpose of adjudicating the issue section 74 and 76 of the Evidence Act are to be treated to be subject to Chapter XIV of the Code. Section 548 of the Code has no manner of application in the instant case. 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. Mobarak Hossain alias Jewel Vs The State, 20BLD(HCD)422 Ref: 20 ILR(Madras)189; 30 ILR (Mad) 466; A1R1961(Mad)92; 48 DLR (HCD) 95— Cited Section—167 If the Magistrates are permitted to pass orders in police stations where the accused, admittedly, have no means to have recourse to a lawyer or their relatives, the whole significance of section 167 of the Criminal Procedure Code would disappear and it will amount to a farcial performance of imperative legal requirements concerning the liberty of the citizen. 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 so as to assume jurisdiction by the Magistrate to pass the judicial order of remand and the accused must be brought before the Magistrate prior to passing the order of remand, no matter whether he is in police lock up or in judicial custody. Physical production before the Magistrate is also necessary prior to exercise of jurisdiction by the Magistrate under section 167(2) Cr.P.C. to see by himself as to the physical condition of the accused and to know the statements/objection, if any, of the accused prior to the order of remand. Under section 167 Cr.P.C. an accused is to be forwarded to the Magistrate whether he is in police custody or in jail custody and any deviation against this clear intention is likely to create an impression that the Magistracy has made itself subservient to the police in utter disregard of the judicial function entrusted to it with regard to the determination of the question of liberty of the citizens. Under the provisions of section 167 Cr.P.C. it is imperative upon the police to forward the accused in person before the Magistrate and the Magistrate shall, in exercise of his judicial discretion, pass the order of remand in presence of the accused so as to enable the accused know of the offences, to get assistance, if necessary from his lawyers or friends and make objection against the order, place and period of remand. Aftabur Rahman alias Zangi Vs. The State, 13BLD(HCD)547 Ref: 34 DLR(AD) 222; (1969) Pakistan Criminal Law Journal 873; AIR 1935 Lahore 230; 1992 Pakistan Criminal Law Journal 985—Cited Code of Criminal Procedure (Second Amendment) Act, 1992 (42 of 1992) Section—167 With the amendment of section 167 Cr.P.C. by Act 42 of 1992, the time limit for conclusion of investigation has been done away with and the amendment being in respect of a procedural law there is no legal difficulty for the police to continue with the investigation of a case after the aforesaid amendment came into force on 1st November, 1992 and submit chargesheet. Government of Bangladesh Vs. Shah Alam, 15BLD(AD) 108 Section—167 This Court has been noticing repeatedly that the police does not investigate the case having regard to provision of section 167 of the Code which provides, if the police report is not submitted within certain stipulated period, the accused is entitled to bail and the Court cannot wait for police report for uncertain period but to act within the frame work of law and court is bound to release the accused on bail as mandated by law and Constitution. The monitoring authority should be vigilant over investigating agency so that, the investigation is completed within the stipulated period. The judiciary one of the principal organs of the State have the responsibility to the citizen and cannot allow the police for harping upon investigation for unlimited period and keeps the accused behind the bar. Tarique Syed Mamun Vs,The State, 20 BLD(HCD)559 Section—167 (5) The purpose for 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 by prolonging investigation. But this provision is directory and not mandatory. Therefore, on the expiry of the period for investigation the accused cannot claim bail as a matter of right. It is ultimately the discretion of the Court which has to be exercised judicially. Md. Anwar Hossain Vs. The State, 15 BLD (HCD)101 Section—167(5)(7) Before repeal by Act 42 of 1992 Sub-section 5 of section 167 of the Code of Criminal Procedure provides that Magistrate shall make an order stopping further investigation if investigation could not be concluded within the specified time or extended time. Sub-section 7 of the said section 167 of the Code provided that where further investigation into an offence as stopped on the expiry of specified time or the extended time, the accused shall be released. In the instant case, no order was passed by the learned Magistrate after the expiry of specified or extended time stopping further investigation and releasing the accused persons. Since none of the accused persons was in custody, no question of releasing any one of them could arise by stopping further investigation. Kitab Ali Sikdar Vs. The State, 15BLD (HCD)482 Section—167, Sub-sections (5), (6), (7) and (7A) as they stood before amendment by Act No. XLII of 1992 When none of the accused persons of a case is arrested and detained in custody, none of the provisions of sub-sections (5), (6),(7) and (7A) of section 167 Cr. P.C. is attracted. Since none the accused persons of the instant case was arrested and detained in custody till 2.3.1985, the order dated 2.3.1985, passed by the Upazilla Magistrate stopping investigation of the case under Section 167(5) Cr.PC. is palpably illegal and non-est. Md. Rafiqul Islam Vs. The State, 14BLD (HCD)409 Section—167(5) By substituting the provision of section 167(5) of the Code stopping further investigation for non-completion of investigation within the prescribed period and releasing of the accused therefor as was in the previous provision of section 167 (5) of the Code was deleted. So at a time when the report to prosecute the petitioner was submitted by the Assistant Inspector, Bureau of Anti-Corruption there was no provision in section 167 (5) of the Code for stopping investigation of a case and releasing the accused because of non-completion of investigation within the statutory period and as such the question of stopping of the investigation of the case in respect of the petitioner and releasing him does not arise at all. Sree Bimal Chandra Adikhari Vs The State, 19BLD(HCD)282 Ref: PLD1955(Lahore)667; (1957) 9DLR 633—Cited Section—167(7A) The High Court Division took the view that for reviving a case under sub-section (7A) of section 167 Cr.P.C., it was necessary for the Magistrate to release the accused under sub-section (7) after further investigation was stopped under sub-section (5) and the accused having not been released under subsection (7), there was no occasion to resort to sub-section (7A). The Appellate Division held that such a view was not correct as there was no good reason as to why an order of revival could not be passed under sub-section (7A) merely because the accused was not released. Government of Bangladesh Vs. Shah Alam, 15BLD(AD)108 Under repealed provisions of section of Cr.P.C. 167 (5)(7) Right of the accused under the repealed provisions of sub-sections 5 and 7 of section 167 of the Code of Criminal Procedure was a contingent right and not a vested right and as such the principle enunciated by a Division Bench of this Court in the case of Abu Sufian and others Vs. The State, reported in 45 DLR 610 has no manner of application in the facts and circumstances of the present case. Kitab Ali Sikdar Vs. The State, 15BLD (HCD)482. Section- 345(5A) Composition of offences under section 323 of the Penal Code-High Court Division allowed the composition of offence U/S 323 Penal Code and conviction and sentence set aside and the accuseds are acquitted of the charge U/S 323 Penal Code. Mst. Subani and Mrs Benu Bibi Vs The State 1 BLT (HCD)-61 Section- 349A Whether the provision of Section 349A of Code of Criminal Procedure are applicable for saving the judgment of the learned Sessions Judge which was admittedly based on the evidence not recorded by him but by the special Martial Law Court. Held: It will remain a matter of regret that inspite of recording the evidence of as many as 50 witnesses there could not be a legal conclusion of the trial for an offence of murder which will be shelved without a judgment being delivered, one way or other, by a competent Court of Law. The State Vs. Golam Mostafa & Ors 5 BLT (AD)- Section-351 Accused—a person is said to be accused if the information or complainant alleges against him in the complicity of the occurrence, or in a case where police after investigation found his complicity in the occurrence although he was shown as a witness or into a case where a person attending a criminal Court, may be detained for the purpose of inquiry into or trial of any offence of which such court can take cognizance. Mst. Sahera Khatun Vs. The State & Ors 9 BLT (HCD)-40 Section-367 Perverted Judgment In a case where the trial court has failed] to discuss and assess the expert evidence and other evidence on record and written his judgment without trying to determine the fact in issue, the same is definitely application perversed judgment. Abul Hossion & Ors. Vs. The State & Ors 11 BLT (HCD)-383 Section-367 The accused-appellants were charged under Sections 458/302/34 of the Pen? Code and the learned Trial Court found have convicted the accused-appellants under Section 302/34 of the Penal Code, but remained silent about the fate of charge so framed under Section 458 of the Penal Code which indicates the impugned judgment was not drawn as per provisions of Section 367 of the Code of Criminal Procedure. Monu Sheikh & Ors Vs. The State 12 BLT(HCD)-177 Section-367 Judgment —Points for determination In the instant case, there appears to be finding on the charge under Sections 409/109 of the Penal Code. Having framed charge under those sections, the learn Judge is bound to come to a finding of either guilt or innocence as charged. Moreover there are innumerable instances misreading and failure to exercise pro[ judicial mind, which rendered the judgment defective and hence they cannot be sustained. Dulal Chandra Shill & Ors Vs. The State 14 BLT (HCD)-556 Sectiion-367 and 424 Contents of judgment of the appellate Court An appellate court disposing a criminal appeal must formulae points for determination, fhe decisions thereon and the reasons for the decisions. This necessarily implies that the appellate Court is required to discuss and consider the material evidence on record and arrive at his independent findings on all material points at issue. Yasin Mollah & Anr. Vs. The State 8 BLT(HCD)-356 Section- 369 High Court has no power to review its Judgment. The pronouncement of the verdict of the court is actually the delivery of the judgment irrespective of the time of actual signing of the judgment by the presiding judge, and the judgment takes effect with its pronouncement. So, there appears to be no logic in holding that although a full-fledged judgment has been delivered on the merit of the case, there is said further scope for the court to review its judgment in the garb of re-hearing a provision which is clearly not contemplated in law. Maniruzzaman Vs. The State 6 BLT (HCD)-189 Section-369 A judgment of a Criminal Court is final so far as that court is concerned and such court is functions officio after signing the judgment and has, therefore no power to Review override, alter with the judgment in judgement manner except where it is otherwise provided by the Code or for the purpose of correcting clerical error. Mst. Sahera Khatun Vs. The State & Ors 9 BLT (HCD)-40 Section-371 The convict is legally entitled to a copy of the judgment free of cost if he desires to present an appeal and intimates to the jail authority in this regard.-We direct the trial Courts to intimate to all the convicts who are not defended by a lawyer or the convicts though defended by a lawyer intend to prefer jail appeal due to financial or any other cause, of their right of getting copies of the judgment free of cost in order to enable them to present proper appeal within limitation without being misled in the hands of undesiring persons. This direction is given for the interest of justice on consideration of overall socio-economic conditions of the country. Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434 Section- 374 Zahiruddin killed his wife Velua Khatoon on suspicion of her illicit relationship with a paramour such fact being proved by PW 4 and having it corroborated by confessional statement of the accused, the husband was convicted u/s 302 of the Penal Code and sentenced to death. On death reference High Court Division confirmed the death sentence. Appellate Division commuted it to one of life imprisonment. Before causing death of his wife if one is suffered for some time from in bitter sense of being wronged by his wife having illicit connection with here paramour, sentences of death can be commuted to one of life imprisonment for ends of justice. Zahiruddin Vs. The State 3 BLT (AD)-115 Section-386 Recovery of Fine A fine imposed by a Criminal Court upon an accused is recoverable from him under the provisions of Section-386 of the Code. A fine is a kind of financial punishment as distinguished from physical punishment and it must, therefore, be paid by the counvict under all normal circumstances. The accused has no option to plead that he will undergo imprisionment for a term fixed be the Court in lien of payment of the fine. If the accused is allowed to exercise his option, he can easily avoid the payment of fine by undergoing imprisonment for a fixed term for default in payment of fine and thereby frustrate the very purpose of impositions of the fine and defeat legislative intent. Fine being a charge upon the property of a convict as a public due, it continues to be so even after his death and it is recoverable from his successor-in-interest under the provisions of Section-386 C.P.C. A duty is cast upon the trial court to ensure recovery of the fine as promptly as possible. Md. Ali Hossain & Ors. Vs. The State 8 BLT (HCD)-191 Section- 403 Fresh complaint, over the self same occurrence- when a proceeding is stopped under section 339C of the Code of Criminal Procedure and the accused stands released thereunder, such release is neither an acquittal nor a discharge as has been contemplated under the Code and as such the accused cannot claim the protection of section 403 of the Code from facing trial for the same offence. Jotish Das Vs. Chandan Kumar Das 4 BLT (AD)-258 Section- 403 After acquittal under section 247 Cr.P.C. lodging of the second complaint on the self same allegations was barred under section 403 Cr.P.C. Dewan Obaidur Rahman Vs. The State & Anr 7 BLT (AD)-227 Section-408 Section 408 prescribes the forum of appeal from the sentence of Assistant Sessions Judge and the Magistrate of the first class. It provides that any person who has been sentenced by a Metropolitan Magistrate, or a Magistrate of the first class (a District Magistrate is a Magistrate of the! first Class) or any person is sentenced under section 349 or in respect of whom a sentence has been made under section 380 by a Magistrate of the first class, may appeal^ to the Court of Session. In case of an Assistant Sessions Judge passes any sentence not exceeding five years, the convict may appeal to the Court of Sessions. Only exception is that if a person is convicted under section 124 A of the Penal Code by a Magistrate, his appeal lies to the High Court Division. The convicts have already undergone their sentences before they are taken up for admission hearing. Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434 Section-412 The plea of the appellant was not genuine] and it was an admission that he has committed the act, which is alleged to be an offence. An accused person who pleads guilty and is convicted thereon, he has no right to appeal exceed to the extent or legality of the sentence as provided in section 412 of the Code of Criminal Procedure. Where, however, 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 an section 412 of the Code cannot bar an appeal from his conviction. Skeikh Mujibur Rahman @ Razibulla & Ors. Vs. The State 11 BLT (HCD)-262 Section-412 The right of appeal of a convicted accused is taken away if the court has accepted the plea of guilty and convicted him on such plea.-The conviction of a person on his plea of guilty must be shown to have admitted distinctly each and every fact necessary to constitute an offence. Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD)-434 Section-415A Section 415A recognizes a right of appeal of an accused person against whom a non-appealable sentence is passed in a trial in which an appealable judgment is passed against any of the accused person. This on confers a general right of appeal and thought the co-accused can only appeal as to his conviction and not as to his sentence, yet the other accused can appeal as to both. Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD)-434 Section-417A(1) and Section-417A(2) In the Case arising out of complaint, the complainant is competent under Section 417A(2) of the Code of Criminal Procedure to prefer appeal against conviction before Appellate Court on the Ground of inadequacy of sentence but where the case arises out of an F.I.R the informant is not inadequacy of sentence. This right to prefer appeal lies with the Government as contemplated under Section 417A(1) of the Cods of Criminal Procedure and the same can be preferred before the High Court vision only. Tajul Islam & Anr. Vs. The State 9BLT (HCD)-148 Section-417(3) The 'special limitation' as has been provided in sub-section 3 of Section 417 of Cr. P. C. is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed case registered upon a petition of complaint. Dr. M. A. Mazed & Ors Vs. Bangladesh & Ors 12 BLT (AD) 154 Section-419 An appeal either by a convict who has presented the appeal through the jail authority or otherwise, must be accompanied by a copy of the judgment or the order under challenge in order to enable the court to know that what accompanies the petition of appeal is a true transcription of the judgment or order appealed against.-If this mandatory provision is not complied with, it is open to the appellate Court to reject the appeal. Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434 Section-421 and Section 423 The essential difference between the dismissal of an appeal under this section and its dismissal under section 423 is that in the latter case the appeal is disposed of after trial, whereas in the former the court summarily dismisses it, refuses to try it at all. Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434 Section- 422 Notice in a criminal appeal- In a criminal appeal, that a complainant cannot have a right of ordinance once an accused is convicted on the basis of the complaint. Kamal Mia Vs. Aleya Begum & Ors. 6 BLT (HCD)-90 Section- 423 If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mistrial, 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. The State 7 BLT (AD)-133 Section- 423 When it is found after a full trial that there was a mistrial of 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 prosection should not be given a change to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial. Asiman Begum Vs. The State 7BLT (AD)-133 Section-423 read with Children Act, 1974 Sections-6 and 66(1) From the scrutiny of the record, we find some redeeming features and vital facts record to find that the question of accused appellant of being a child within meaning of the Children Act, 1974 unfortunately the defence did not prop and specifically did not press the is before the learned Tribunal urging upon ' to direct an enquiry to ascertain as whether he comes within any exception entitling him not be tried by the Tribunal the usual course, and the learned Spec Tribunal trialed him and convicted him, we find from the charge sheet that accused appellant Md. Monir Hossain 14-15 years on the day of submitting charge sheet against him on 24.09.1998. It also found form order No.6 dated 22.12.1998 from the order sheet of the S that the prayer for the accused appellant specifically grounded on the question of being a 'minor'. In the facts of the case, found that the question of the accused appellant of being a child was before learned Tribunal although not specific pressed for an answer. Since the convict against the accused appellant is one imprisonment for life and the age of accused appellant on the date of framing charges against him is a matter of importance touching the jurisdiction of Court, we fee find it necessary in the interest of justice that the learned Special Tribunal should direct an enquire to satisfy himself to whether accused appellant Md. Monir Hossain was a child below 16 years of on the date of framing charges against on 31.11.1999 Md. Monir Hossain @ Monir Hossain Vs. State 9BLT (HCD)-285 Section-424 Duty of the appellate Court An appellate Court while disposing a criminal appeal must formulate points for determination and the decisions thereon with reasons. Merely saying that the appellate court agrees with the findings of the trial without referring to material evidence on record is not a proper judgment in the eye of law. Soleman Momin & Anr. Vs The State & Anr. 9BLT (HCD)-35 Section- 426 Under the rules of the High Court Division the officer is to prepare paper book criminal appeals and the appellant has no responsibility in the matter unless he volunteers in his own interest- The court cannot put a fetter on the right of appeal of an accused by asking him to prepare paper book nor can it be made a condition for granting or extending bail already granted. Obaidul Hoque Vs. The State 2 BLT (AD)-1 Appellant Division do not approve granting bail to the petitioner when the appeals pending in the High Court Division the Petitioner should have moved the High Court Division again for hearing the appeal without paper book and if it was not possible to permit him to remain on bail. Obaidul Hoque VS. The State 2BLT (AD)-1 Section- 426 The appellants along with 6 others were under section 302/34 of the Penal Code and were acquitted. Against the said judgment and order of acquittal, the State filed government appeal before the High Court Division. In such circumstances it will not be fair and reasonable to put the appellants behind the prison bar when they have already got an order of acquittal from competent court after a full-fledged trial. It may also be mentioned that as a measure of punishment bail should not be refused in case when an order of acquittal has been passed appellants are entitled to bail. Abdul Hafiz Howlader & Ors Vs. The state 3 BLT (AD)-1 Section- 426 Absconsion of the co-accused could not be a ground for refusing bail to these petitioners who have been in jail for a long time. In the matter of bail pending disposal of appeal or rule the period of sentence is a matter for consideration. Dudu Mia Khalifa & Other Vs. The State 2 BLT (AD)-12 Section- 426 When Bail can be granted. In cases of short sentence the accused may be released on bail where there is likelihood of delay in disposing of the appeal- If the appeal cannot be disposed of within the longest time, the accused petitioner may renew the prayer for bail. Md. Jahangir Hossain Vs. The State 2BLT (AD)-16 Section- 426 Bail on pending appeal-imprisonment for life-In F.I.R. mentioning the names of as many as 8 accused persons and the parts taken by them in the alleged occurrence leading to the death of Jobbed Ali- the name of the appellant petitioner does not appear in the F.I.R. when was lodged on the following day and he is the only earning member of the Hindu joint family- allow the prayer for bail of the petitioner. Paritosh Singha Vs. The State 4 BLT (HCD)-147 Section- 426 Bail- on 5.11.92 charge sheet was submitted against the petitioner and 8 other under section 366A of the Penal Code read with section 4 (b) of the Cruelty to Women (Deterrent punishment) Ordinance, 1983-No charge has yet been framed in the case. Holding of Trial is being unnecessarily delayed without any fault on the part of the appellant, the other co-accused persons have been enjoying the privilege of bail, granted by the Special Tribunal- the appeal is allowed. Nurul Amin Vs. The State 4BLT (AD)-157 Section- 426 Bail in pending appeal on murder charge save and except self exculpatory confessional statement, wherein the co-accuseds mentioned the name of the appellant- petitioner, there is noting on record to showing the involvement of the accused petitioner in the murder of the deceased- there is no chance of hearing of the appeal in near future and by this time the appellant- petitioner has already suffered more than 2 and half years towards his sentence appellant- petitioner enlarged on bail. Md. Ayub Ali & Ors Vs. The State 2 BLT (HCD)-167 Section-426 Proper discretion in the matter of granting bail in a pending appeal filed against a short sentence. Principle laid down in the case reported in 11 BLD (AD)-96—The learned Judge apparently failed to get the message from the case cited before him. It was observed in that case that in an appeal against a short sentence (2 years ringorous imprisonment as in the present case) bail should be ordinarily granted in the exercise of a proper discretion because usually it takes time to hear the appeal and within passage of the Period of sentence the appappeal becomes infructuous. The 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. AM Uddin Vs. The State 8 BLT (AD)-5 Section 426(1) Accused appellant challenging the order conviction and sentence by appeal -Appeal was filed with a separate application for bal but no order was passed on this application and hence by way of an application und» section 426(1) of the Code of Criminal Procedure -Held; we think that it would just and proper if the learned Metropolitan sessions Judge is directed to dispose of the application for bail of the appellant petitioner at an early date preferably on before 25.3.2007. Shamsuzzaman Vs. The State & Ors 15 BLT (HCD) 98 Section-431 An appeal against a sentence of fine shall not abate by reason of the death of the accused appellant; because it is not a matter which affect his person but one which affects his estate and hence that part of the; appeal which relates to sentence of imprisonment shall abate on the death of the appellant but the other part relating to sentence of fine shall not abate—relied on 22 DLR 244. S. Talibur Rahman Vs. The State 10 BLT (HCD)-387 Section- 435& 439A The proper course which the lea Additional Sessions Judge ought to have taken in Criminal Revision Case was to an order for further inquiry by the learned Magistrate, not an order of revival of the petition case as contended by the petitioner's Counsel. Held: We direct that the order of revival of petition case No. 392 of 1996 be altered to a direction to the learned Magistrate to hold further inquiry. Md. Ferdous Mondal & Ors Vs. The State & Anr 5 BLT (AD)-56 Section- 435/439A, 561A (a) There is no second criminal revision under the abuse of S.561 A Cr. P. C. Relied on Nader Ali Sheik Vs. State 1(1984) BLD (AD) 7. Md. Rehman Ali & Others Versus The State 1 BLT (HCD)-74 (b) Where is abuse of process of Court the bar of second revision will not stand in die way of invoking the provision of 561A to secure the ends of justice and to prevent the abuse of the process of the Court. [Relied on 36 DLR (AD) 44]. Md. Rehman Ali & Others Versus The State 1 BLT (HCD)-74 (c) If a party is aggrieved by a charge farmed by the Magistrate u/s 242 Cr. P. C. the aggrieved may seek remedy under section 439 and 439A Cr. P. C. before the Sessions Judge. There being no appeal against the order. Md. Rehman Ali & Others Versus The State 1 BLT (HCD)-74 (d) The order of the Magistrate to the investigation officer to submit the charge sheet for the offence of dacoity is unauthorized and the I. O. need submit the supplementary charge sheet- the order of the Ld. Additional Sessions Judge should not be quashed as there is not illegality in it- rule discharged. Md. Rehman Ali & Other Versus The State 1 BLT (HCD)-74 Section-436 The requirement of Section 436 of the Code of Criminal Procedure is the satisfaction of the Sessions Judge on examining any record under section 435 or otherwise that a further enquiry should be made into any complaint which has been dismissed or into the case of any person accused of an offence who has been discharged. Even when the Magistrate takes cognizance on the basis of Judicial enquiry, examination of the Complainant on oath is not a condition-precedent. Abu Jafar Siddiqi Vs. The State & Ors 11 BLT (HCD)-440 Section- 437,438,439 (4), 439A (2), 369 and 561A (a) Section 437 omitted and Section 438 has given concurrent powers and jurisdictions to the Sessions Judge, the Chief Metropolitan Magistrate and the District Magistrate to make a report in respect of criminal proceedings for orders to be passed by the High Court Division. Mafizuddin & Others Vs. Alauddin & Another 2BLT (HCD)-53 (b) Interpretation of statute- difficulties have arisen due to the insertion of section 439A in the code- whether the order passed under section 439A is amenable to the jurisdiction of the High Court Division effect of Law Reforms Ordinance No. 49 of 1978 in inserting sub-section (4) in section 439. Mafizuddin & Others Vs. Alauddin & Another 2BLT (HCD)53 (C) Interpretation of statute- Sections 439(4), 439A(2) and 561 A- Construction of the words "adjudicata" under sections 439 or 561A occurring in the Code- whether 561A can be invoked to adjudicate upon all orders passed by the Sessions Judge under Section 439A. Mafizuddin & Others Vs. Alauddin & Another 2BLT (HCD) 53 Section- 438 Executive Director of the Securities and Exchange Commission filed reports under section 25 of the Securities and Exchange Ordinance, 1988 before the Chief Metropolitan Magistrate, alleging offences under section 17 read with section 24 of the said ordinance where upon the CMM took cognizance of offence and directed issuance warrant of arrest against the accused petitioners, on the day following, the accused petitioners obtained anticipatory bail from the High Court Division, then they filed criminal revision cases before the Sessions Judge, under sections 435 and 43 9A of the Code of Criminal Procedure for setting aside the order of the CMM- Held: The reference made by the Sessions Judge was misconceived because he himself could set aside the order of the CMM which was actually prayed for. Shinepukur Holding LTD. & Ors. Securities Exchange Commission & Anr 6 BLT (AD)-265 Section- 439 Non issuance of any notices to the State, cannot by itself be a bar in filing the revisional application against the order of acquittal. Abu Taher & Ors Vs. Hasina Begum & Ors. 6 BLT (HCD)-120 Section- 439 It appears from the judgment of the High Court Division that the two injured witnesses namely Titu Mia and Jainal did not name the accused- respondents before the investigating officer in their statement, recorded under Section 161 Cr. P. C. and respondent No. 3, Giasuddin was not even named in the F.I.R. - Held: We do not find any illegality in the impugned judgment, which warrants interference by this Division. Ayub Ali Miazi VS. S. A. Molla & Ors. 5 BLT(AD)-140 Section-439 Whether against an order of Cancellation of bail, application under section 498 of codm of Criminal Procedure is maintainable. In the event of cancellation of bail by a Court of Session the accused again cannoJ invoke jurisdiction under section 498 of The Code and the remedy lay for him is invoking Revisional Power under section 439 of the Code of Criminal Procedure. Mohsin Ali Pramanik Vs. The State 11 BLT (HCD)-241 Section-439 Revisional jurisdiction of High Court Division under section 439 of The Code of Criminal Procedure is a kind of Paternal and] Supervisory Jurisdiction exercised to correct a miscarriage of Justice arising from apparent harshness of treatment resulting is some injury and undeserved hardship to an individual. Revisional Jurisdiction of High Court Division is in its real purpose, not merely a power but a duty which is to be exercised in aid of justice High Court Division] may exercise revisional jurisdiction on the application of a party or even Suo-moto. Mohsin Ali Pramanik Vs. The State 11 BLT HCD)-241 Section-439 The power of the High Court Division envisaged in Section 439 of the Code of Criminal procedure is a kind of paternal or supervisory power which is to be exercised on case where there is a glaring defect in the procedure or there is a manifest error point of law and consequently there been a flagrant miscarriage of justice. power is to be exercised in aid of justice and there is no form of injustice that the long arm of the Court cannot reach because for administering and dispensing real and substantial justice, the court alone exists and there is no species of injustice where the High Court Division cannot correct where its interference is called for. Moni Begum@ Moni Vs. Shamsur Rahman & Ors. 10 BLT (HCD)-70 Section-439 We are of the view that 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. More so the power of exercising such discretion is clearly vested in the Court even if this Court Otherwise comes to know of any illegality in any order of any inferior Court within its jurisdiction. Md. Abdur Rahman Kha Vs. The State 10 BLT (HCD)-78 Sections- 439 (5) and 561A (a) The trial was held under the Special powers Act, 1974 which provides for an appeal under Section 30 of the said Act-special period of limitation has been prescribed by section 30 of the Act for preferring an appeal. The convict accused petitioners could not prefer any appeal within time, the appeal is barred by limitation- In the circumstances, the High Court Division should not entertain an application under section 561A of the Code inasmuch as to entertain the said application beyond the special period of limitation would amount to entertaining a time barred appeal under special law in the garb of an application under section 561A of Code - if no appeal is preferred against the order passed by the Special Tribunal, on the expiration of the special period of limitation, the order passed by the Special Tribunal becomes final, past and closed transition in relation to the High Court Division exercising its criminal jurisdiction. Abdus Salam & Ors Vs The State 2 BLT (HCD)-126 (b) Section 439 (5) of the Code has absolutely prohibited the High Court Division to entertain a revision when an appeal under the Code has been provided for- if no jurisdiction to entertain a revision, the High Court Division cannot exercise its inherent power under section 561 A. Abdus Salam & Ors Vs The State 2 BLT (HCD)-126 Section- 439 Read with Section 497 There being sufficient materials before the High Court Division for believing that the petitioners were guilt of an offence punishable with death or imprisonment for life- the order for their surrender before the trial court is justified. Faruque Hasan Joarder & Others Vs. The State 2BLT (AD)-14 Section- 439, 439A and 561 A (a) A first information report was lodged against the accused appellants and others the police after investigation submitted charge sheet against appellants-the naraji petition filed by the informant was rejected by the Magistrate but the Sessions Judge allowed in and not only directed further investigation but also specifically asked the police to submit charge sheet under the Anti Terrorism act, So far as the direction to hold further investigation into the case is concerned, it is quite lawful: but the direction to submit charge sheet is clearly without the court’s jurisdiction the division of the learned Judges of the High Court Division that the application under section 561A is liable to be rejected for lack of jurisdiction is held to be totally erroneous and as such it is set aside- the appeal is allowed in part. Md. Sher Ali & Ors Vs the State 2 BLT (AD)-38 (b) Interpretation of statute- The High Court Division has been given power of revision under section 439(1) of the Code-Effect of Law Reforms Ordinance No. 49 of 1978 in inserting sub- section (4) in section 439 revisional jurisdiction has been concurrently conferred on the High Court Division and the Sessions Judge- section 439A (2) provides that the Sessions Judges 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. Therefore 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 under section 439(1) of the Code as this revisional application is expressly barred by section 439(4)- it is settled law. Md. Sher Ali & Ors Vs. The State 2 BLT (AD)-38 (c) Interpretation of statute- The High Court Division can exercise its inherent power under section 561 A- the inherent jurisdiction of the High Court Division would be available even to a party who had lost in revision before the Sessions Judge-this inherent power is neither an additional power nor an alternative power of the court, the inherent power under section 561Acan be invoked at any stage of the proceeding] and even after conclusion of trial, if it is necessary to prevent the abuse of the process] of the court or otherwise to secure ends of justice- section 561A of the Code gives no new power to the High Court. Md. Sher Ali & Ors Vs The State 2 BLT (AD)-38 (d) Section 439(4) is not a special law in relation to section 561A though 439(4) is a later provision than section 561A there is no conflict between them and both of them can stand together- section 561A directly applies to a case if it attracts the specific conditions set out thereby- the idea that both the courts one under section 439(4) the other under section 439A are equal in power and the judgment of the one is the judgment of the other appears to be grotesque displaying perversity of thought. Md. Sher Ali & Ors Vs The State 2 BLT (AD) -38 (e) 35 DLR case in respect of interpretation of section 439A(2), there is no dissent in the latest decision (45 DLR-AD, 9) the Appellate Divisions Jurisdiction is exercised on an appeal from a decision of the High Court Division only to suggest that a leave petition may be field under Article 103 of the Constitution challenging the Sessions Judge's decision was in fact an exercise in utter misconception of the provisions on sections 439, 439A and 561A of the Code. Md. Sher Ali & Ors Vs the State 2 BLT (AD)-38 (f) A law declared by the Appellate Division is binding upon all the courts] including the High Court Division the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy-l The judicial discipline and decorum demand that the decisions of the Appellate Division must be obeyed without any criticism and comments. Md. Sher Ali & Ors Vs the State 2 BLT (AD)-38 Section-439 read with Evidence Act, 1872 Section-114(g) High Court as a revisional court is to see correctness, legality or propriety of the findings of the appellate court. If it is found that any injustice has been done, this court may set aside the findings of the appellate Court. The duty of this court is to correct patent defect or error of the appellate court. The object of rivisional legislation is to confer upon superior criminal courts a kind pattern or superior jurisdiction in order to correct miscarriage of justice arising out of misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment -It is the cardinal rule in the law of evidence that the available evidence should be brought before the court to prove the fact or points in -The learned trial court as well as the apellate court has failed to realized that the prosecution has withheld the important eye witnesses and injured witnesses and also has to adduce any reliable and convincing evidence to prove that the accident caused due to rash and negligent driving and thus the courts below failed to decide the points at issue correctly. Md. Abdul Quddus & Anr Vs. The State 15 BLT (HCD)-470 Section-439A The main question the Sessions Judge has to consider in revision is whether substantial justice has been done. Where there has been no failure of justice, the Sessions judge will not interefere in revision even though there may have been an irregularity. Where however the order of the Magistrate is a proper one or cannot be said to be wrong, the Sessions Judge will not interfere against such order. Mst. Sakera Khatun Vs. The State & Ors 9 BLT (HCD)-40 Section- 473 There has not been an elaborate discussion of the evidence on record- In view of the fact that the High Court Division did not write out a proper judgment we took pains of going through both the judgments and we do not find that any miscarriage of justice has been caused. After a careful consideration we feel that no useful purpose will be served in sending the case back to the High Court Division for writing out a proper judgment as the same suffers from no error of law and fact. Abdul Khaleque Master & Ors Vs. The State 7 BLT (AD)-179 Section- 473 Remand to the trial court for a fresh decision and allowed both the complainant and the accused to examine further witnesses on the point whether the alleged executant, Renu Bala died on 5.7.82 as alleged by the complainant or on 5.8.82 as alleged by the accused persons- Held: The learned Judges of the High Court Division in consideration of the evidence of PW2 and his report Ext. 2 found an indication of commission of forgery on the deed in question, and held rightly that the trial Magistrate had conveniently failed to consider the opinion of both the hand writing expert and the fingerprint expert to facilitate a judgment of acquittal. Bhulu Rani Saha Vs. Sri Pran Ballov Podder & Anr. 7 BLT (AD)-215. Section-476 read with Penal Code, 1860 [XLV of I860] Sections-193 and 212 The commission of offence under Sections 193, 212 of the penal Code do not depend upon the outcome of the original trial. The concerned witnesses and other persons may still be guilty of giving false evidence with intention of screening the accused from legal punishment as the case may be, if the ingredients of those offence are proved on evidence against them. As a matter of fact the ommission of offence, under Section-193/212 of the Penal Code do not depend upon the acquittal or conviction of the original accused persons for whom the false evidence was given or sought to be screened from punishment. Md. Masur Rahman Mollah & Anr Vs The State 9 BLT (HCD)-63 Section-476 Any allegation of offence alleged to have been committed in or in relation to any proceeding in any court, should not be taken lightly. There is no scope for leniency or complacency in this regard. Rather, it is imperative on the part of the concerned court to deal promptly with such allegation and strictly in accordance with law as it concerts the administration of Public Justice. Md. Masudur Rahman Mollah & Anr Vs the State 9 BLT (HCD)-63 Section-476A In view of the materials on record and that as there is substance in the submissions of the learned Advocate entering into caveat for the decree holder respondent Nos. 1-15 in Civil Petition for leave to Appeal No. 741 of 2000 we are of the view that the application filed under Section 476A Cr.P.C. on behalf of the decree holder respondent Nos. 1-15 for making complaint to the Magistrate for committing offence said to be under one of the sections of the] Penal Code as mentioned in Section 195(1 )(c) of the Cr.P.C. metrits consideration. Mst. Makhan Baral & Anr. Vs. Shaylendra Nath Mondal 9 BLT (AD)-162 Section- 476B Whether in appeal the appellate court has jurisdiction to order remand of the cast under section 476 to the trial Court. In case of making complaint the appellate court is to follow the provision of section 476. The authority of the Appellate Court is thus clearly pronounced and it cannot go beyond it. Sending a case on remand by thd appellate court amounts to acting beyond jurisdiction. Khizir Hayat Khan Eusuf Zai Vs. Maja (Rtd.)Md. Muqtadir Ali & Ors 7 BLT(AD)-252 Section-476 Read with Section-195(1) (b) (c) Both section 195 and 476 of the Code of Criminal Procedure clearly speak of production of a document in a proceeding before a court, Section 195 (2) speaks of civil, revenue or Criminal Court and Section 476 of the Code speaks of an enquiry into any offence referred to section 195 sub section (1) clauses (b) and (c) when offence appears to have been committed relation to a proceeding in that Court. Thus it is absolutely clear that unless document is filed in Court, the Court can make a complaint. Shamsuddin Ahmed Chowdhury Vs. The State & Anr. 5BLT (AD)- Section- 488 (a) The provisions of the Family C Ordinance, 1985 (Ordinance XVIII of 171 has not taken away the power of a Magistrate to order for maintenance under section 488 Cr. P. C. Meher Negar Vs Md. Mozib-ur- Rahman 2 BLT (HCD)-203 (b) The term matters has wider meaning then the term suit and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings. Meher Negar Vs Md. Mozib-Ur- Rahman 2 BLT (HCD)-203 Section- 491 Primary evidence being there that the girl is minor and that she is the victim of an offence, she should be returned to the custody of her parents from where she was abducted as contended by the learned Advocate for the Appellant Mother. Held: We think 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. Kh. Zayedul Haque & Anr. 7 BLT (AD)-242 Section- 491 Custody of the minor girl who is a victim of an offence of abduction and the opinion of a minor girl- High Court Division disposed of with the direction that, "Hence it is ordered mat if the victim girl is willing to go with her father, she may be allowed to go with father, but if she does not want to go with her father then she will be kept in judicial custody till the disposal of the criminal case as well as till she attains majority that is the age of 18 years"- Held: learned Judges having found the victim girl to be a minor ought to have given the minor in the lawful custody of the father. The opinion of the minor is irrelevant and the same cannot be a condition precedent for giving her custody to the father. The learned Judges failed to consider that a minor's refusal to go with her father is not at all a material consideration regarding her custody. Father being the best well- wisher of a minor daughter is entitled to custody and in her own interest she should be given in her father's custody. Sree Mongol Chandra Nandi Vs. Bangladesh 5 BLT (AD)-l Section- 491 A mother was complaining that an offence of kidnapping/ abduction was committed by the accused persons in respect of her minor girl who is a victim of the offence and she should be rescued from the offenders and given to her custody- Held: In any event having regard to the fact in this particular case that all the available materials so far, supported the claim of the mother that the girl was aged about 15/16 years except the statements of herself the High Court Division cannot be said to have acted judiciously and properly in ignoring the said materials and relaying solely on the statement of the girl herself and their own observation of the girl and in making a finding thereupon that she was a major above 18 years. We are of the opinion that the mother has a reasonable grievance to make against the impugned judgment which does not seem to have been passed upon a proper appreciation keeping in view the welfare of the victim girl who is alleged to be minor- appeal is allowed. Khairunnessa Vs. Illy Begum & Ors 4 BLT (AD)-112 Section-491 Prima facie—it appears that the victim girl is minor and she is a victim of an offence under Section-9(Kha) and (Ga) of Nari-O-Shishu Nirjaton (Bishesh Bidhan) Ain, 1995. She was put to judicial custody by the learned Magistrate in April. 1997 when she was produced before him. Since then she has been staying in a prison house except for a few days when she came out therefrom on getting adinterim bail from the High Court Division. It is entirely unacceptable that a young girl who is an innocent victim of the alleged offence should remain in an unwholesome atmosphere of a jail for an indefinite period. It is not known when the trial will conclude which, we have been informed, has however, started. The young girl cannot be allowed to walk away from the prison house of her own, because she has not independent place to stay. The parties have not been able to provide any answer to our query whether she could be put in a safe neutral home pending disposal of the case. The welfare of the girl, in our opinion, should be the deciding factor in such a situation. The appellant produced a certificate from the school where the girl was reading which corroborates the statement of the appellant that his daughter was a minor at the relevant time. The radiologists opinion also supports the appellants case. Having considered all aspects of the matter we are satisfied that it will be fit and proper and in the best interest of the girl if she is released from custody and given to the care of her father. Bashu Dev Chatterje Vs. Mr. Umme Salma 8 BLT (AD)-168 Section-491 Victim petitioner was put into judicial custody—application under Section 491 of the Code of Criminal Procedure is maintainable. The petitioner has challenged the order judicial custody under the provision of 491 of the Code of Criminal Procedure considering the impugned order is so kind of detention passed under the veneer of judicial custody as the order which is under challenged does not bear the legal acumen to its true sense. Indeed there are ingredients Section 491 of the Code of Criminal Procedure for filing the present Criminal Miscellaneous Case, the intended provision of Section 491 of the Code of Criminal Procedure is to secure justice for those w are detained in illegally & the present c~ fall within the ambit of Section 491 of Code of Criminal Procedure, as such only course is open to the petitioner f getting remedy under the provision of Seed 491 of the Code of Criminal Procedure. Jasim Nahar Vs. The State 9 BLT (HCD)-164 Section-491 Whether the application under Section-4 of the Code is not maintainable. Victim was put into judicial custody —when the order of custody of the detenu is passed by a competent court, a petition" cannot get any relief under Section-491 the Code unless and until that order is aside by a superior court. Monsur Ali Vs. The State 9 BLT (HCD)-172 Section-491 The power given to this court und Section491 is limited and confined to f determination of the question whether person is detained illegally or improperly, determining this question, this court exercise of the power given under section cannot decide whether the order the learned Sessions Judge was legal or not and also cannot set aside that order. Monsur Ali Vs. The State 9 BLT (HCD)-172 Section-491 Whether wrong in granting ad interim bail to the detenu Held: We have gone through the available materials and it appears that this detenu was in jail and was serving out the sentence of imprisonment imposed in default of payment of fine and there was an order from the court below to release him from jail when the convict managed to pay 50% of the fine imposed and thereafter the order of detention was passed. From the judgment of the High Court Division it appears that it is in the back of mind of the Judges that a person who was in custody of the State as a prisoner cannot be a factor for deterioration of law and order if he comes out of jail and thereafter ad interim bail was granted. Bangladesh Vs. Md. Naziur Rahman & Ors. 10 BLT (AD)-31 Sectioin-491 Maintainability—A person may have a t to move before higher court challenging Legality of the order, one could approach the High Court Division under the said Section 491 of the Code Criminal Procedure for a direction that his or ward having been detained in judicial custody illegally or in an improper manner, made over to the custody of her natural guardian in the best interest of her welfare. Arun Karmakar Vs. The State 10 BLT (AD)-40 Section-491 Maintainability—Appellant is the father of victim—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 and in the instant case when the age of the victim is prima facie below the age of majority we are inclined to allow the victim to the custody of the appellant. Md. Abdul Majid Sarker Vs. The State & Ors. 10 BLT (AD)-127 Section-491 Custody —Prima facie—being prima facie a minor on the date of occurrence and even today we are of the view that the girl not being an accused has been illegally and improperly detained in judicial custody and when prima facie she is minor it is right and proper that the girl should stay with her parents and as she is not an accused she cannot be kept in judicial custody. In such a situation the opinion of the girl who is a minor is irrelevant. The minor's refusal to go with her father the appellant is not at all a material consideration. The father being the best well wisher of the minor is entitled of her custody and for her own interest she should be given to her father’s custody. Md. Abdul Majid Sarker Vs. The State & Ors. 10 BLT (AD)-127 Section-491 Section 491 of the Code enshrines that if a person within the territorial Jurisdiction of the Court is illegally or improperly detained in public or private custody, the High Court Division may direct that the said Detenu be brought before it to be dealt with according to law and he is not being held in detention illegally and unlawfully and be set at liberty. Md. Afzal Hossain Vs. Ministry Home Affairs 10 BLT (HCD)-1 Section-491 An order of detention passed upon a citizen of 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. Section -491 Section 491 of The Code is a procedure for enquiry as to whether a person is illegally or improperly detained in custody and if it so found the court would direct the release of such person. The power to issue directions in the nature of Habeas Corpus is a specie in itself and it affords effective means of immediate release from unlawful detention. High Court Division is quite competent to pass an order under section 491 of The Code for release of a detenu from illegal detention. A.A. Sakib Vs. The State 14 BLT (HCD)-402 Section-491 Oath-Affidavit to the original application under Section 491 of the Criminal procedure has been sworn by one Jafirul Islam, Cousin of Mukter Hossain, the principal accused being an interested person not competent to depose. Merina Renu Vs The State 14 BLT (HCD)-177 Section- 491 Sub-Section(1) B Alleged in the F. I. R. that the petitioner had entered the international border ridding a bicycle and carrying Indian currency and crossed into Bangladesh - The learned Special Tribunal no. 1 Panchagarh framed the charge against the petitioner under Section 25 B of the Special Powers Act. Upon this charge the petitioner pleaded guilty and the Special Tribunal convicted the petitioner u/s 25B of the Special Powers Act- The learned Special Tribunal didri apply his mind to the facts of the case ar! went only on the petitioner's pleading guilty for passing the conviction a sentence- The fact of the present case do n bring the case within the ambit of Special Powers Act. The trial has b without jurisdiction and unlawful. Petitio should be set at liberty forthwith i accordance with Section 491 Sub- Sectio| (1) B of the Code of Criminal Procedure. Ananta Vs The Sate 2 BLT (HCD)-116. Section—342 Omission or defect in the examination of the accused persons under Section 342 Cr.P.C., whether occasions any miscarriage of justice. Held: Omission or defect in the examination of the accused persons under section 342 Cr.P.C. does not occasion any miscarriage of justice and the same is mere irregularity and curable under section 537 of the Code of Criminal Procedure. Hafez Munshi alias Hafizur Rahman and others Vs. The State, 13BLD(HCD)461 Ref: 39 DLR 437—Cited Section—342 This section is intended for giving the accused an opportunity to explain the circumstances appearing against him in the evidence and this is entirely for the benefit of the accused. The prosecution can get no benefit out of it. Abdul Karim Vs Shamsul Alam and another, 14BLD(HCD)167 Section—342 When confession is the only evidence of involvement of the accused in the alleged offence and his attention is not drawn to it while examining him under Section 342 Cr.P.C for affording him opportunities to offer his explanation thereon, it must be held that the requirement of law was not fulfilled. The accused has been seriously prejudiced. Abul Kashem and others Vs. The State, 16BLD(HCD)120 Ref: 10 DLR 61—Cited Section—342 This section has been provided for the protection and benefit of the accused and it imposes a duty upon the Court to examine the accused properly and fairly by bringing all the incriminating materials to the notice of the accused for enabling them to furnish reasonable explanations. Failure to comply with this requirement of law prejudices the accused persons. Zafar and others Vs. The State, 14BLD (HCD)280 Section—342 When in his statement under section 342 Cr.P.C. the accused gives a reasonable explanation in support of his innocence, the Court is required to consider the said explanation in the light of the facts and circumstances of the case and the evidence on record. The Court is not justified in ignoring the statement of the accused recorded under section 342 of the Code of Criminal Procedure. A.K.M. Hafizuddin Vs. The State, 15 BLD(HCD)234 Ref: 8DLR(WP)64; 9DLR(SC) 14; 14 DLR 292; 25DLR (SC)73; 5 DLR (WP)67 (Old 106)—Cited. Section—342 It provides that the attention of the accused persons must be drawn to all incriminating evidence and circumstances appearing in the evidence against them and they must be given the opportunity to explain the circumstances and the evidence to be used against them. Failure to do so vitiates the order of conviction. Kamala and others Vs The State, 15BLD (HCD)449 Section—342 Examination of accused It requires that the incriminating evidence must be brought to the notice of the accused to enable him to explain his position. Violation of this requirement of law prejudices the accused. Md. Nizamuddin Dhali Vs. The State 16BLD (HCD)580 Ref: 5 D.L.R. 509; 39 DLR 14; PLD 1960 (Dhaka)13;41 DLR(AD)158; 16DLR 223, 39DLR 437; 28DLR(AD)35; 33 DLR 191—Cited. Section—342 Incriminating evidence must be brought to the notice of the accused The only evidence against the accused being the alleged recognition at the T.I. Parade, this vital fact must be brought to the notice of the accused while examining him under section 342 of the Code. Non-mentioning of the vital fact while examining him under section 342 of the Code has deprived him of the opportunity to offer his explanation to the matter and the same has seriously prejudiced him and the trial stands vitiated on that score. Md. Mizanur Rahman alias Miza alias Mizan Vs The State, 17BLD(HCD)82 Ref: (1982)3 SCC 368; 4IDLR 32; 19 DLR (1967) 662; 29 DLR 355; A.I.R. 1964 (All) 290—Cited. Section—342 Provision of section 342 of the Code being a mandatory provision of procedural law, the departure from the fundamental principles of the said section causes grave prejudice to the accused. Since the accused-appellant was not given any opportunity to explain the circumstances, the order of conviction appears to have been vitiated and it is liable set aside. Nurul Islam alias Nur Islam Vs The State, 18BLD(HCD)695 Section—342 Section 342 of the requires that all incriminating piece of evidence and circumstances appearing against the accused must be brought to his notice so that he may offer his explanation thereto. The exercise under section 342 of the Code is not an idle formality but a legal necessity affording a valuable right to the accused and as such a definite duty is cast upon the trial Court to see that the provision of section 342 is duly complied with. The casual and irresponsible manner in which the accused appellants have been examined under section 342 of the Code clearly betrays a sense of total lack of application of a judicial mind and judicial responsibility on the part of the learned Special Judge and the same has definitely prejudiced the appellants. Alauddin Khan Pathan and others Vs The State, 19BLD(HCD)74 Ref: AIR 1936(P.C) 253, 41DLR 64, 50 DLR 17—Cited 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. Al-haj Nurul Islam Chowdhury and another Vs The State, 20BLD(HCD)168 Section—342 The trial Court should draw the attention of the accused to the main incriminating evidence against him, particularly the confessional statement, while examining him under section 342 Cr.P.C. But mere omission to specifically draw the attention of the accused to such evidence does not always prejudice him. When the accused did not retract his confession either by application from jail or by directly filing such application in the Court at any time, no grievance on the unsubstantiated allegations of inducement and torture can be entertained at the last stage of the trial. Mezanur Rahman and others Vs. The State, 16BLD(AD)293 Sections—342 and 537 It is a settled law that exculpatory statement uncorroborated by any other evidence, cannot be the basis of a conviction. Since attention was not drawn while the appellant was examined under section 342 of the Code either to his confessional statement or to the statement of Dulal, the appellant is obviously prejudiced and as such the trial stands vitiated. Such defect is not curable under section 537 of the Code. Abu Jamal and others Vs The State,19BLD(HCD)411 Section—342 Children Act, 1974 (XXXIX of 1974) Section—2(f) According to section 2(f) of the Act a child means a person under the age of 16 years. In the instant case the appellant was a regular student of Class IX at the time of commission of the offence and he was aged about 14 years when the Court examined him under section 342 of the Code and as such the trial is without jurisdiction. Md Shamim Vs The State, 19BLD (HCD)542 Sections—366 and 369 The delivery of judgment means the pronouncement of judgment within the meaning of section 366 of the Code while the provision of signing of judgment is contained in section 367 thereof. Section 369 of the Code provides that once a judgment is delivered and signed a finality is attached to it. The Criminal Court has no authority whatsoever to review its judgment and to make any alteration or correction therein except correcting clerical mistakes. It is the universal practice of the High Courts of the sub-continent that judgments are dictated and delivered in the open Court and the verdict of the Court is made known to all concerned right at the moment of its pronouncement. Thereafter judgments are transcribed and signed by the Presiding Judge or Judges, Between the delivery of the judgment and the signing of the same, there invariably intervenes a time gap which varies from case to case depending on the size of the judgment and the time consumed for transcription of the same and other incidental factors and in the process there emerges a time gap. Just because a judgment has not been formally signed after its transcription by mechanical devices but it has duly been delivered in the open Court, it cannot be conceived that the Court can still review its judgment by way of rehearing the matter. Moniruzzaman alias Muhammad Maniruzzaman Vs. The State, 18BLD(HCD)439 Ref: 33DLR88; 14DLR (SC)76; 4BLD (AD) 168—Cited. Section—367 Contents of Judgment It is the function of the trial Court to analyse the evidence, both direct and circumstantial, in the back ground of the respective case of the prosecution and defence and to separate the grains from the chaffs. If the trial Court is swayed by the oratory of the lawyer of a party to the case and without properly analysing the evidence on record in the context of the case of the prosecution and defence, arrives at any finding on consideration of irrelevant matters assigning artificial reasons, then those reasons are likely to be manifestly wrong and perverse and decision arrived at on the basis of such reasons may result in failure of justice. Dulal Miah alias Dulal alias Nurun Nabi Vs Ruhul Amin and others, 18BLD (HCD)485 Sections—367 and 424 While disposing of a criminal appeal, the appellate Court is required to formulate the points for determination, the decisions thereon and the reasons for the decisions. This necessarily implies that the appellate court must consider at least the material evidence of the case and arrive at his independent findings on all material points at issue. Mere saying that it concurred with the findings of the trial Court without referring to the material evidence on record is not sufficient to meet the requirements of law. Yasin Mollah and another Vs The State, 20BLD(HCD)493 Section—369 Judgment in a criminal case In a criminal case a judgment means a judgment of conviction or acquittal. Every order passed in a criminal case cannot, therefore, be termed as a judgment. So, an order dismissing a criminal revision for default is not a judgment within the meaning of section 369 of the Code. In the absence of any specific bar in the Code of Criminal Procedure, a petitioner, whose revisional application has been dismissed for default and not on merit, is not debarred from a filing second revisional application to challenge an illegal order. Anowar Hossain and others Vs. Md. Idrish Miah, 15BLD(HCD)457 Ref. 12 DLR 681; 35 DLR 208—Cited Section—374 In a reference under section 374 of the Criminal Procedure Code, whether the proceedings shall be submitted to the High Court Division and the sentence shall not be executed unless it is confirmed by the High Court Division—Whether a Death Reference may be disposed of even if the condemned accused is absconding. Held : (i) In a reference by the Sessions Judge under section 374 Cr.P.C., the proceedings shall be submitted to the High Court Division and the sentence shall not be executed unless it is confirmed by the High Court Division. (ii) A Death Reference made under section 374 Cr.P.C. may be disposed of by the High Court Division even if the condemned accused is absconding. The State Vs Md.Tuku Biswas, 13BLD (HCD)306 Ref: 21 DLR(SC)109; PLD 1969(SC) 89—Cited Section—374 Sentence of death passed by a Court of Session shall have to be referred to the High Court Division for confirmation A sentence of death passed by a Special Martial Law Court against the two petitioners and confirmed by the Chief Martial Law Administrator but the sentence remained unexecuted till the withdrawal of Martial Law, shall have to be referred by the Sessions Judge to the High Court Division for its confirmation under section 374 of the Code of Criminal Procedure. In such a case although the death sentence has not been awarded by the Sessions Judge himself, the execution of sentence of death passed by the Special Martial Law Court having not reached its finality for non- execution, the Sessions Judge is under a legal obligation to follow the provision of section 374 of the Code as he is required to follow in the case of sentence of death passed by him in the trial held by himself. Abdul Baset and another Vs. Government of Bangladesh, through the Secretary, Ministry of Home Affairs and others, 15BLD (HCD)210 Ref: 41 DLR 484,44DLR(AD)16—Cited. Section—376 Commutation of death sentence The condemned-prisoner is in the condemned-cell for a period of 4 years and 11 months and he has been suffering the mental agony of death in the death cell. Considering the fact and circumstances of the case and the fact that death sentence remained pending for 4 years and 11 months, the High Court Division held that the sentence of life imprisonment instead of death will meet the ends of justice. The State Vs Md. Monir Ahmed alias Monir Hossain, 18BLD(HCD)605 Section—376 Penal Code, 1860 (XLV of 1860) Section—34 Vicarious liability and commutation of death sentence Since the condemned prisoners Omar Ali, Quasem Ali did not give the fatal blows they are only vicariously liable under section 34 of the Penal Code for the offence of murder but ends of justice will be met if their sentence is commuted and reduced to one of imprisonment for life. Since the accused Akkel Ali gave the channy blow on the stomach and.the ribs and there was infection as a result of that injury the High Court Division inclined to maintain his sentence of death. The State Vs Akkel Ali and ors, 20BLD (HCD)484 Section—376 Commutation of sentence The condemned prisoner was arrested on 11.12.91, conviction and sentence to death on 20.9.94. He has suffered the agony of death sentence for more than 5 years, moreover he is a man of 25 years. He has an old mother, one wife (1st wife) and two children to support and look after. He is not a hardened criminal. He found his wife (deceased) in illicit connection and in an inappropriate situation with Delwar and thus suffered from a sense of being wronged by her. He cannot be termed as ‘vicious macho male’ and accordingly the sentence of death is reduce to life imprisonment. The State Vs Bellal Hossain, 20BLD (HCD)45 Ref: Nausher Ali Sarder Vs. State, 39DLR(AD) 194—Cited Section—410 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 in disposing criminal justice in Bangladesh. Mahmudul Islam @ Ratan VsThe State, 20BLD(AD)249 Ref: 18BLD (AD) (1998)254: 4 MLR (AD)29—relied Section—401 (I) Government power to suspend or remit sentences General Clauses Act, 1879 (X of 1879) Section—21 Acting President’s Order No. 70 of 1990 Acting President’s Order dated 14.1.1991 was passed under section 401(1) of the Code of Criminal Procedure and it was given effect to on and from 14.1.1991 and under this Order numerous convicts got release before 1.6.1996 passed subsequently by the Government. If now the Government’s Order dated 1.6.1996 is made applicable in the case of the present detenu, it will lead to discrimination in the matter of enjoying amnesty benefits given by the Acting President on 14.1.1991. When a legal right is accrued in favour of a man and if any order or action to this end is given effect to, then such right and consequence cannot be taken back or nullified by a subsequent Govt. order under section 21 of the General Clauses Act. Mohammad Jahangir Alam Vs Government of Bangladesh and others, 17BLD (HCD) 195 Ref: 27 DLR 315; 18 DLR 92; PLD 1960 (SC)310; PLD 1963 Lahore 53 (DB), PLD 1965(Pesh)47 (DB); 12DLR865(DB)—Cited. Sections—410 and 423 Disposal of a criminal appeal acquitting the accused-appellant in a summary manner just on an untenable medical ground and without considering the entire evidence on record, particularly the evidence of the eye witnesses, acting on untenable premises is not sustainable in law. The case is sent on remand to the High Court Division for fresh disposal of the appeal by a different Bench. The State Vs. Abdul Khaleque alias Abdul Khaleq Howlader, 17BLD(AD)188 Section—410 Criminal prosecution involves many participants in a complicated sequences of steps, such as the Judges, the lawyers, investigating agency, witnesses of the public, expert witnesses etc. which involves public expense, time etc. If a superior Court disposes a criminal matter, more particularly a criminal appeal of such a great importance in a light hearted manner without any application of judicial mind then that will have a demoralizing effect on the subordinate judiciary in disposing criminal justice in Bangladesh. The State Vs Giasuddin and others,18BLD(AD)254 Ref: 1953 PLD(FC)317; PLD 1966 (Labore) 8; 39 DLR(AD) 117—Cited Section—417 Appeal against acquittal 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. The normal order upon admitting the Government appeal is to direct the Deputy Commissioner concerned to take the acquitted persons into custody and release them on bail to the satisfaction of the Deputy Commissioner. Abdul Hafez Howlader alias Habibur Rahman and others Vs. The State, 19 BLD (AD)1 Sections—417A and 404 Sentence can be enhanced by the High Court Division after giving a reasonable opportunity of showing cause against such enhancement when an appeal is filed under section 417A of the Code by a complainant against any sentence on the ground of its inadequacy. In view of the provisions of section 404 of the Code no appeal shall lie from any judgment or order of criminal court except as provided by the Code. So, except under the provisions of section 417A of the Code, there is no other provisions for filing any appeal for enhancement of any sentence. Moktar Ali Bepari Vs. The State and another, 19BLD(HCD)259 Section—422 Notice of appeal It provides that after a criminal appeal against an order of conviction and sentence is admitted for hearing, the appellate Court is required to give notice to the appellant or to his lawyer as well as to the State mentioning the time and place of hearing of the appeal. It does not contemplate issuance of any notice to the complainant, because after the complaint case has ended in conviction, the State comes to the picture as it is the duty of the State to execute the verdict of conviction and sentence imposed upon the accused. Thus a complainant cannot claim any right of audience in an appeal in which the accused has been convicted and sentenced by the trial Court on the basis of a complaint made by a private individual. Md. Kamal Miah alias Nasim Vs. The State and another, 18BLD(HCD)187 Ref: AIR 1 960(Andra Prodesh)311-relied Section—417(1) Acquittal Order of acquittal cannot be interfered by the appellate court unless it is found that the said order is manifestly perverse. A finding cannot be said to be perverse if it is against weight of evidence. The State Vs Mrs. Shamima Arshad, 20BLD(HCD)315 Ref: A1R1966 Cal 31; 9DLR(1957) WP) 13; 37DLR(AD) 167—Cited Sections—423 and 408 In an appeal from a conviction, sentence may be reduced by an appellate Court but sentence cannot be enhanced. From subsection (1)(bb) of section 423 it is also clear that 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 such enhancement. In the instant appeal, the appellate Court had no power to enhance the sentence of the appellants who filed the appeal under section 408 of the Code against their conviction by the trial court. Obviously, the enhancement of sentence of the appellants was illegal and without jurisdiction. Moktar Ali Bepari Vs. The State and another, 19BLD(HCD)259 Section—423(1)(bb) In view of the provision of section 423(1)(bb) of the Code in an appeal for 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. In the instant case the appeal was not an appeal for enhancement of sentence. It was an appeal under section 408 of the Code of Criminal Procedure against the judgment and order of conviction and sentence passed by the trial Court. So, instant appeal the appellate Court has no power to impose the sentence of fine. Mizanur Rzhman Vs. Mst. Surma Khatun, 18BLD(HCD)512 Ref: 1BLD(1981)(HCD)165—Cited Section—426 Bail in a pending appeal involving murder charge The accused petitioner and others were convicted under section 302/34 of the Penal Code and sentenced to imprisonment for life solely on the basis of the ex-culpatory confessional statements of the co-accused. The petitioner has already suffered more than two and half years of his sentence—There is no chance of hearing of the appeal in the near future—In view of the above facts and circumstances the accused petitioner is enlarged on bail till disposal of the appeal. Md. Ayub Ali Vs. The State, 14BLD(HCD)501 Section—426 Bail in a short period of sentence In an appeal against a short sentence bail should be ordinarily granted in the exercise of a proper discretion because usually it takes time to hear the appeal and with the passage of the period of sentence the appeal becomes intructuous. Alal Uddin Vs The State, 19BLD(AD)202 Ref: 1 1BLD(AD)9 6—Cited Section—426 The appellants and six others were put on trial before an Additional Sessions Judge, Barisal to answer charges under section 302/34 of the Penal Code and after a fuilfledged trial the accused persons were acquitted. Against this order of acquittal the State filed an appeal before the High Court Division. The appellant’s prayer for bail was refused by the High Court Division. The Appellate Division held that in normal circumstances bail is granted in such cases as because the accused have already satisfied the competent court that there are no reasonable grounds for believing that they have committed the alleged offence. It is also the normal practice of the High Court Division to grant bail in such circumstances. It has been further held that as a measure of punishment bail should not be refused in a case when an order of acquittal has been passed. Bail is granted to the appellants. Abdul Hafiz Howlader alias Habibur Rahman and others Vs. The State, 15BLD (AD)144 Section—426(2) In appeals involving short term of imprisonment the appellate Court should either dispose of the appeal expeditiously or consider the release of the appellant on bail. It is not necessary for the appellate Court to write a long judgment for the purpose of disposal of the bail petition. Mahbub and others Vs. The State, 14 BLD (AD)184 Section-426(2A) Section 426, sub-section 2A Cr.P.C is the section which entitles lower Court to grant bail to a convict for a limited period after conviction in order to enable him to prefer an appeal. Shaheb Ali Vs. The State, 13BLD (HCD) 445 Section—426(2B) Bail under section 426(2A) Cr.P.C may be granted both by the trial Court and by the appellate Court. But the conviction in such a case must not carry beyond one year. But the very language of the section shows that the power to grant bail under section 426(2A) Cr.P.C. is not available either to the trial Court or to the appellate Court when the conviction carries senterfce of imprisonment of more than one year. Under section 426(2B) Cr.P.C High Court Division may grant bail to the convict or suspend the sentence after disposal of the appeal or revision irrespective of the period of sentence imposed, if only it is satisfactorily proved that leave to appeal has been granted by the Appellate Division. The legislature intended that the lower court under section 426 (2B) Cr.P.C could be exercised only when the sentence did not exceed one year. Shaheb Ali Vs The State, 13BLD(FICD) 445 Ref: 43DLR(AD) 120—Cited Sections— 435, 338 and 439A Legislature has consciously kept section 438 alive even the Sessions Judges have been invested with the powers under section 439A to make final orders enabling the litigants to chose the forum as to whether he would resort to the fotum provided under section 438 or under section 439A with the risk of finality of the order that may be passed in relation to him only. Abdul Ahad @ Md Abdul Ahad Vs The State, 20BLD(HCD)372 Section—436 Notice to the accused Notice to the accused person is not necessary in a revision u/s 436 Cr.P.C. directed against the dismissal of a complaint. The Court is not required to issue a notice to the accused persons at the preliminary stage of taking cognizance by issuing processes. Sirajuddowla and others Vs. The State and another, 15BLD(HCD)607 Ref: A.I.R.1927 (Madras) 19 (FB); 1971 Supreme Court Cases (Cr1) 446; A.I.R. 1959 (SC) 144—Cited Section—438 Sessions Judges have been given revisional powers to make final orders but simultaneously their powers of to make recommendation to the High Court Division for orders under section 438 have also been kept intact. The intention of the legislature is clear and obvious. It is that a litigant has been given option to choose the forum, whether he would avail the powers of the Sessions Judge either under section 438 or under Section 439A of the Code. When a litigant resorts to section 438 of the Code of Criminal Procedure, Sessions Judges must read section 435 of the said Code together, because section 438 is not independent of section 435. AbdulAhad @ MdAbdulAhad Vs The State, 20BLD(HCD)372 Section—439 Under section 439 Cr.P.C. the High Court Division can suo motu call for the records and correct any error in the order of the Court below. Order showing the accused arrested and allowing remand is illegal and not sustainable and as such liable to be set aside. Aftabur Rahrnan alias Zangi Vs. The State, 13BLD(HCD)547 Ref: 34 DLR(AD) 222; (1969) Pakistan Criminal Law Journal 873; AIR 1935 Lahore 230; 1992 Pakistan Criminal Law Journal 985—Cited Section—439 When the appellate Court and the High Court Division, upon a view of the rest of the evidence and circumstances which is not unreasonable or perverse, refused to believe the prosecution case, it is settled law that this Court, merely because a different view is possible on the evidence, does not interfere with an order of acquittal. Unless it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges have purported to acquit is at all supportable, this Court will be reluctant to interfere, even though upon the evidence on the record and the facts and circumstances of the case this Court might well have come to a different conclusion if it was trying the case. Md. Abdul Hamid Mollah Vs. Ali Mollah and another, 13BLD(AD)127 Ref: Siraj Din Vs Kala, 16DLR (SC)94— Cited Section—439 Under section 439 of the Code of Criminal Procedure 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. Md. Reazuddin Ahmed Vs The State and another, 17BLD(AD)123 Section—439 The High Court Division under section 439 of the Code having supervisory jurisdiction can scrutinise and go into facts of a case to examine the propriety of the orders passed under section 265C or 265D of the Code. Mrs. Jobaida Rashid Vs The State, 17BLD (HCD)352 Section—439A The learned Sessions Judge can not pass any direction for framing charge under a particular Section of the Penal Code. Considering the case of the respective parties, the learned Sessions Judge may direct for further enquiry but he can not form his own opinion in such a revisional application and direct the trial Court to frame charge under a particular section of the Penal Code. If, during trial, it transpires that charge ought to have been framed under a higher Section of the Penal Code or a change in the charge is necessary, then the trial Court may take any step for framing fresh charge and proceed with the trial. Section 242 of the Code of Criminal Procedure has given wide power to the trial Court to frame a charge under a particular section of the Penal Code which can not be interfered with by the revisional Court by way of giving direction for altering the charge or framing the charge. Shariful Islam Vs. Md. Billal Hossain and The State, 13BLD(HCD)392 Section-439A While deciding a revisional application a Sessions Judge or an Additional Sessions Judge can deal with questions of facts of a case as much as an Appellate Court and on consideration of the evidence on record he may reverse the judgment of the learned Magistrate. But in reversing such a judgment he is required to advert to the reasons assigned by and the findings arrived at by the Magistrate. Shamsuddin alias Shamsuddoha Vs. Amjad A14 15BLD(HCD) 197 Ref: 44 DLR (AD) 56—Cited Sections—439 A and 561 A Remedy under Section 561A Cr.P.C. is available to a party in an appropriate case even after the Sessions Judge exercised his power under Section 439A Cr.P.C. Md. Soleman Vs. A. Barek Khalifa and Others, 15BLD(HCD) 198 Ref: 4 BLD (AD) 165; 26 DLR 17; 27 DLR 260; 20 DLR (DACCA) 367; PLD 1968 (Peshwar) 214; 25 Cr1 L. J. 1161 (Rangoon); 50 Cr1. L. J. 967 (All); 32 Cr1. L.J. 1237 (Cal); A.I.R. 1947 (Lahore) 227—Cited Sections—439 (4) and 561A The “total bar “ contemplated in section 439(4) Cr.P.C. is only against further revision and not against the inherent jurisdiction of the High Court Division. The High Court Division, on the one hand, willfully disregarded the decisions of the Appellate Division, and on the other hand, flouted Article 111 of the Constitution which is strongly disapproved. Md. Sher Ali and others Vs The State and another, 14BLD(AD)84 Section—439 Anti-Corruption Act, 1957 (XXVI of 1957) Sections—3,4 and 5 Provision of the Act can be resorted to for enquire into or for investigation of pecuniary resources or property of any person either he is a public servant or any other else or in other words ‘an ordinary citizen’ and as such the provisions of the Act is not applicable in the case of petitioner, who is ‘an ordinary citizen’ is not correct. A KM Muhituddin Vs The State, 19BLD (HCD)455 Sections—439A and 561A In view of the absolute bar made in section 439(4), the High Court Division cannot entertain any proceeding against an order passed by the Sessions Judge under section 439A. The general provision under Section 561A cannot be invoked to circumvent the absolute bar under section 439(4) and to make the same nugatory. Sessions Judge exercising power under section 439A Cr.P.C. having been equated with the High Court Division exercising power under Section 439 Cr.P.C., the order passed by the Sessions Judge cannot be interfered with by the High Court Division by resorting to section 561A of the Code as the order so passed by the Sessions Judge would be deemed to be an order passed by the High Court Division and as such the High Court Division is not permitted to review its own order or Judgment by having recourse to section 561A Cr.P.C. In such a case the aggrieved party may move the Appellate Division directly against the order of the Sessions Judge. Mafizuddin and Others Vs. Alauddin and another, 14BLD(HCD)45 Section—439(2) Awarding sentence of fine along with imprisonment for life can not be said to be illegal in view of the section 409 of the Penal Code If the sentence of fine is to be enhanced then a Rule should be issued upon the appellant to show cause why the sentence to pay a fine imposed upon him under the impugned judgment should not be enhanced. A.M.A. Wazedul Islam Vs. The State 13BLD(HCD)296 Section—476 The Court issued a suo motu Rule under section 476 of the Code upon delinquent Abdul Majid to show cause as to why an inquiry should not be made as to whether he gave false evidence as PW.2 on 19.4.1992 before Bar Council Tribunal No.1 in a complaint case and there by conmitted an offence punishable under section 193 of the Penal Code. Abdul Hamid Advocate Vs. Bangladesh Bar Council, 17BLD(HCD)547 Section—476 In view of the provisions of section 476 Cr.P.C a Court cannot proceed directly against any person for giving false evidence or fabricating evidence. The Court cannot also impose any fine upon any witness or direct him to pay any compensation to the accused. A Tribunal constituted under section 26 of the Special Powers Act is required to follow the provisions of section 476 Cr. P.C if it wants to proceed against any witness for commission of an offence under section 193 of the Penal Code. Md. Idris Miah Vs. The State, 18BLD (HCD)288 Section—476B Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint under section. 476 or section 476A, or against whom such a complaint has been made may, appeal to the Court to which such former Court is subordinate within the meaning of section 195, subsection (3), and the superior Court may thereupon, after notice to the parties concerned direct the withdrawal of the complaint or as the case may be, itself make the complaint which the subordinate Court. might have made under section 476, and if it makes such complaint the provisions of that section shall apply accordingly.” The language of the above provision is clear and unambiguous. All that the appellate court can do is to direct the withdrawal of the complaint if made by the trial court or itself to make the complaint which might have been made by the subordinate Court. In case of making complaint the appellate court is to follow the provision of section 476. The authority of the appellate Court is thus clearly pronounced and it can not go beyond it. Sending a case on remand by the appellate court amounts to acting beyond jurisdiction. Khizir Hayat Khan Eusuf Zai Vs Major (Rtd) Md. Muqtadir Ali & ors, 20BLD (AD)46 Section—488 Family Courts Ordinance, 1985 (XVIII of 1985) Under section 5 of the Family Courts Ordinance the Family Court has exclusive jurisdiction to try any suit for maintenance. An application for maintenance under section 488 of the Code of Criminal Procedure not being a suit, is not within the exclusive jurisdiction of the Family Court. The provisions of the Family Courts Ordinance have not therefore taken away power of the Magistrate to order for maintenance under section 488 of the Code of Criminal Procedure. Zinnatan Nessa Vs. Md. Kaloo Mia, 15 BLD(HCD)545 Ref: 14 BLD 467:47 DLR 18—Cited Section—488 Family Courts Ordinance, 1985(VIII of 1985) The provisions of the Family Courts Ordinance, 1985 have not ousted the jurisdiction of a Magistrate to order for maintenance to wife and children under section 488 Cr.P.C. The provisions of the Family Courts Ordinancè, 1985 have not ousted the jurisdiction of a Magistrate to order for maintenance to wife and children under section 488 Cr.P.C. The provisions of the Family Courts Ordinance, 1985 are applicable not only to the Muslim community but also to other communities which constitute the populace of Bangladesh. Abdul Khaleque Vs. Selina Begum and another, 14BLD(HCD)467 Section—488 A proceeding under section 488 of the Code of Criminal Procedure is quasi-criminal and quasi-civil in nature, which gives certain specified powers to the Magistrate to grant maintenance to wives and children who are unable to maintain themselves. The combined effect of the provisions of sections 3, 4, 5 and 27 of the Family Courts Ordinance, 1985 is that the jurisdiction of the Magistrates in dealing with matters contained in section 488 of the Code is clearly ousted after coming into operation of the Family Court Ordinance. 1985. Pachan Rissi Das Vs. Khuku Rani Dasi, 17BLD(HCD)563 Ref: AIR 1961(SC)1152; 14BLD415; 14 BLD 413; 47 DLR18; 2IDLR (1969)123; PLD 1984(SC)95 :PLD 1 984(SC)95; PLD 1971 (Karachi) 887; 42 DLR450 ; PLD 1969 (SC) 187—Cited Section—491 In a habeas corpus proceeding under section 491 Cr.P.C. the question of entire detention of the detenu is before the Court. The High Court Division is competent not only in declaring the detention of the detenu illegal but also competent in declaring the proceedings upon which the detenu was held in detention to be illegal and void. The State Vs. Deputy Commissioner, Satkhira, and others, 14BLD(JICD)266 Section—491 The High Court Division after having found the victim girl to be a minor was not all justified in refusing to give her to the lawful custody of her father. The refusal of the minor to go with her father is not at all a material consideration in respect of her custody. Father being the best well-wisher of his minor daughter is entitled to her custody and it is in her own interest that the minor should be given to her fathers custody. Further, the minor girl is an unfortunate victim of an offence of abduction and it is not understood as to why she should be detained in jail till the disposal of the criminal case as well as till she attains the age of 18 years. Sree Mongal Chandra Nandi Vs Bangladesh and others, 17BLD(AD)33 Ref: Criminal Petition For Leave To Appeal No. 101 of 1996—Unreported. Section—491 From the S.S.C Certificate produced by the father of the victim girl it is found that she is around 18 years of age. She is not an accused in the case. In such circumstances, judicial custody of the victim girl was not found be proper. Sree Tarapada Sarker Vs The State and ors, 17BLD(HCD)379 Ref: 16 BLD (1996) (AD) 124; 48 DLR (AD) 67:1996 BLT(AD)112; 17BLD (1997) (AD) 33: 1997 BLT (AD)1; 15DLR148; 35 DLR315; 9BLD(1989) 469—Cited Section—491 Custody of victim girl Prima facie it appears that the victim girl is a minor (final determination will be made at the trial) and she is a victim of an alleged offence committed by the accused. She was put to judicial custody by the Magistrate in April, 1997 when she was produced before him. Since than she has been staying in a prison house except for a few days when she came out therefrom on getting ad-interim bail from the High Court Division. It is entirely unacceptable that a young girl who is an innocent victim of the alleged offence should remain in an wholesome atmosphere of a Jail for an indefinite period. The young girl cannot be allowed to walk away from the prison house of her own, because she had no independent place to stay. The welfare of the girl, should be deciding factor in such a situation. The appellant produced a certificate from the school where the girl was reading which corroborates the statements of the appellant that his daughter was a minor at the relevant time. The radiologist’s opinion also supports the appellants case. From the above facts and circumstances and having considered all aspects of the matter it will be fit and proper and in the best interest of the girl if she is released from custody and given to the care of her father. Bashu Deb Chatterjee Vs Umme Salma and another, 19BLD(AD)137 Section—491(3) 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 Division from examining the case of a detenu to satisfy itself if the detenu is illegally or improperly 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 Section—494 Withdrawal from prosecution 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 withdraw of a case. In the instant case no reason/ground has been assigned for the withdrawal of the case and there is no indication that materials were considered before taking the decision and the Divisional Special Judge committed illegality in allowing withdrawal under the circumstances. The High Court Division also failed to appreciate the legal aspect of the matter and wrongly refused to interfere in the matter and thereby committed illegality. Sreemati Prativa Rani Dey(Tirtha) Vs Dr. Mohammad Yousuf, Medical Officer, Emergency Department, Chittagong Medical College Hospital and others, 20BLD(AD)54 Section—494 Discretion of Court-withdraw from prosecution Withdrawal from prosecution is subject to consent by the trial Judge and when the accused persons are still absconding the distraction ought not to have been exercised. Sreemati Prativa Raid Dey(Tirtha) Vs Dr. Mohammad Yousuf, Medical Officer, Emergency Department, Chittagong Medical College Hospital and others, 20BLD (AD) 54 Ref: 25 DLR 174; 35DLR(AD) 329, 30 DLR (AD)228; 31DLR (AD)134—Cited. 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. 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. 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—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. 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-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. 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 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. 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 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. 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 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—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. 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. 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. 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 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. 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. 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. 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. 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. 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—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. 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 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. 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. 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 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. 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—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. 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—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 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 tale cognizance octhe 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. 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. 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 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. 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 35A - Period of custody before trial to be deducted from the term of the sentence Section 164 - Confessional statement of an accused cannot be used against her co-accused. Law is well settled that the period of custody before trial shall be deducted from the period of sentence as provided under section 35A of the Code of Criminal Procedure, 1898. Confessional statement of one accused cannot be used against other co-accused. Again the evidence of the witnesses who are natural and competent cannot be discarded by reason of their being related to each other. Mohammad Ali alias Shanu Vs. The State 13 MLR (2008) (AD) 121 Code of Criminal Procedure, 1898 Section 35A - Provisions shall be equally applicable to the convicts tried under the Special Powers Act, 1974. Cardinal Principle of criminal justice system is that until found guilty, an accused shall be presumed to be innocent. Suspicions, however strong is no substitute for evidence. In case of conflict between the medical evidence and ocular evidence as to the injury of the victim, the medical evidence shall prevail. The learned judge of the High Court Division upon interpretation of the applicability of section 35A of Cr. P.C. in reference to the decisions of different jurisdictions held that the convict appellant tried and convicted for an offence under section 3 of the Explosive Substance Act, 1908 by the Special Tribunal under the Special Powers Act, 1974 is equally entitled to the deduction of the period of custody from the period of his sentence. Shadhu Miah and others Vs. The State 15 MLR (2006) (HC) 130. Code of Criminal Procedure, 1898 Section 94(1) - Bank accounts cannot be seized. Production of documents relating to Bank account can be ordered only in connection with investigation of certain offence. The proviso to sub-section (1) of section 94 of the Code of Criminal Procedure, 1898 put the powers of the Sessions judge under certain restrictions. Session judge cannot accord permission to seize the Bank accounts. Permission for production of documents relating to Bank accounts may be accorded only in connection with the investigation of certain offences. The learned judges of the High Court Division held the mere framing of Rule 20(1)(ka) of the durniti daman commision in the absence of any such provision in the Anti-Corruption Commission Act, 2004 cannot negate the provision of section 94(1) of the Cr.P.C and as such set aside the impugned order of the Sessions judge. Tofail Ahmed Vs. Chairman, Anti- Corruption Commission and others 15 MLR (2010) (HC) 177. Code of Criminal Procedure, 1898 Section 145 - Proceedings drawn on apprehension of breach of peace and appointment of receiver. Proceedings drawn on apprehension of breach of peace over the possession of immovable property and the appointment of Receiver by the Magistrate are held by the learned judges of the High Court Division perfectly justified. Once the proceedings is drawn it must be ended by determination of the possession of the party after taking evidence. Possession taken over by one party during pendency of the proceedings by dispossession of the other party is no legal possession. The learned judges further held the Session judge was wrong while setting aside the appointment of the receiver and directing him to hand over possession of the property to the second party during pendency of the proceedings. Alauddin (Md.) Vs. The State and others 12 MLR (2007) (HC) 64. Code of Criminal Procedure, 1898 Sections 145 and 146 - Powers of the Magistrate to draw proceedings to prevent breach of peace relating to possession of immovable property and appoint receiver. The existence of apprehension of breach of peace relating to possession of disputed immovable property vests the jurisdiction in the Magistrate 1st class to draw up proceedings in order to prevent breach of peace. Such power is limited. He cannot decide title to the property which is the absolute jurisdiction of the civil court. In the event the Magistrate finds himself unable to decide the possession of either party to the proceedings he can appoint a receiver under section 146 Cr.P.C. But when a party is in possession of the said property on the date of drawing up proceedings or within 60 days preceding thereof and civil suits are pending the Magistrate cannot appoint receiver. The learned judges of the High Court Division upheld the impugned decision passed by the Additional Sessions Judge in reversing the order of appointment of receiver. Abul Kniam (Mohd.) Vs. State and others 15 MLR (2010)(HC) 126. Code of Criminal Procedure, 1898 Section 154 - There is no limitation litigate criminal proceedings- Delay not fatal when satisfactorily explained. Section 164 - Confessional statement when appears to be true and voluntary - valid piece of evidence which can the basis of conviction. Section 342 - Incriminating materials in record must be brought to the notice of the accused. Penal Code, 1860 Sections 302 and 304 - Absence of intention to cause the death brings the offence of culpable homicide not amounting to murder within the ambit of section 304 of the Penal Code. State Vs. Jahedul Islam @ Moulvi Babu 14 MLR (2009) (AD) 258. Code of Criminal Procedure, 1898 Section 154 - First Information Report (FIR) is an important piece of evidence as it gives out the prosecution story first in point of time and it can be used to check subsequent embellishment. When some new story is introduced during trial not mentioned in the FIR such introduction of new facts is embellishment of the prosecution case which makes the prosecution case doubtful. Aminul Islam and others Vs. The State 12 MLR (2007) (HC) 21. Code of Criminal Procedure, 1898 Section 154 - Delay in lodging FIR - when satisfactorily explained is not fatal for the prosecution. Section 164 - Confessional statement true and voluntary can form the sole basis of conviction. Subsequent retraction does not take away the evidentiary value of confessional statement. Evidence Act, 1872 Section 32 - Dying declaration as to the cause of death of the deceased may form the basis of conviction -The quality but not the quantity of evidence which matters. Circumstantial evidence unerringly pointing at the guilt of the accused can safely form the basis of conviction. Similarly as in the case of husband of a Wife killing case, the wife has also equally the same liability to explain as to how her husband met his death when they were residing in the same house at the time of the occurrence. Penal Code, 1860 Section 302 - In case of murder with extreme brutality death is the proper sentence. Where there is mitigating circumstance the alternative sentence of imprisonment for life is the appropriate sentence. Sentence must be proportionate to the nature and gravity of the offence. State Vs. Anjuara Khatun 12 MLR (2007) (HC) 214. Code of Criminal Procedure, 1898 Section 154 - Delay in lodging F.I.R when not satisfactorily explained casts adverse reflection on the prosecution case. Section 164 - Confessional statement of an accused is no evidence against the other co-accused. Confession recorded of an accused produced from police custody indicates its involuntariness. Burden of proof of charge beyond reasonable doubt lies upon the prosecution. Evidence of witness declared hostile cannot always be discarded. Abscondence by itself is no proof of the guilt of the accused. Sepcial Powers Act, 1974 Section 25B - When the offence alleged does not fall within the definition of, smuggling the accused is entitled to acquittal Smuggling when not done directly by the accused No charge lies against him. Mujibar Rahrnan Vs. The State 13 MLR (2008) (HC) 88. Code of Criminal Procedure, 1898 Section 161 - The statement/evidence of witness examined by the Investigating officer at the belated stage need be thrown out of consideration Section 174 - Investigating officer has to ascertain the cause of death of the deceased - Inquest report of the dead body as to the injuries is admissible in evidence. In case of conflict between the Inquest Report and the post mortem report, the post mortem report shall prevail and the benefit of doubt arising therefrom shall go in favour of the accused. Code of Criminal Procedure, 1898 Section 162 - Statement in the inquest report as to the existence of injury and the cause of death by itself is not evidence. Medical evidence shall prevail in the event of conflict between inquest report and the postmortem examination report. Penal Code, 1860 Section 302/34 –Several injuries inflicted even though on the vital part of the body of the deseased which are likely to cause death and when in consequence thereof actually occurred, certainly constitue offence punishable under section 302 of the Penal Code and not section 304. Syed Nurul Azim Babar Vs the State 14 MLR (AD) 364. Code of Criminal Procedure, 1898 Section 164 - Confessional statement of an accused cannot be used against the other co-accused without corroboration by independent evidence. Law is well settled that conviction of an accused cannot be solely based on the confessional statement of other co accused without corroboration by independent evidence. The apex court strongly disapproved the practice of convicting an accused solely on the basis of confessional statement of other co accused. Majid Sheikh alias Majid and others Vs. The State 11 MLR (2006) (AD) 270. Code of Criminal Procedure, 1898 Section 164 - Confessional statement of an accused cannot be relied upon without examining the recording Magistrate. Penal Code, 1860 Section 398 - Charge held not proved beyond doubt when the evidences are sharply contradictory and material witnesses are withheld. In the instant case the Investigating officer and the Magistrate who recorded the confessional statement of the convict appellant have not been examined by the prosecution without any satisfactory explanation. On the contrary the evidences of the witnesses so far examined are full of contradictions. In such circumstance the learned judges of the High Court Division held the charge not proved beyond reasonable doubt and acquitted the convict-appellants. Latif alias Md. Latif Miah and Rabiuzzal Hossain Vs. The State 13 MLR (2008) (HC) 410. Code of Criminal Procedure, 1898 Section 164 - Confessional statement of accused recorded after being produced from prolonged police custody held inadmissible as not true and voluntary. Penal Code, 1860 Section 396 - Offence of dacoity - Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of the accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266. Code of Criminal Procedure, 1898 Section 164, 364 - Confessional statement of accused can form the basis of conviction of the confessing accused. Penal Code, 1860 Section 302/34 - Charge of murder proved by circumstantial and other corroborative evidence including confessional statement - Sentence of death is held to be appropriate. The charge of cold blooded murder of her daughter with the participation of the co-convict in a gruesome manner appears to have been proved beyond doubt by strong circumstantial evidence and confessional statement of the condemned prisoner corroborated by other independent evidence and there being no mitigating factor the High Court Division having been in complete agreement with the trial court confirmed the death sentence under section 374 of the Code of Criminal Procedure. The State Vs. Rokeya Begum and another 11 MLR (2006) (HC) 63. Code of Criminal Procedure, 1898 Section 173 - Final report and the Naraji petition Neither the High Court Division nor the Sessions judge in exercise of revisional jurisdiction can direct the Magistrate to take cognizance when the police after investigation submitted final report. The Magistrate may be directed to hold further enquiry into the complaint in accordance with law. However the observation of the Sessions judge or the High Court Division shall have no bearing on the merit of the case before the Magistrate. Taher and others Vs. Md. Abdul Kuddus and others 14 MLR (2009) (AD) 55. Code of Criminal Procedure, 1898 Section 173(3) - Magistrate can direct further investigation after submission of police report under section 173(1) - Filing of Narajee petition does not preclude such further investigation. Sub-Section (3B) of section 173 of the Code of Criminal Procedure, 1898 provides for further investigation into an offence even after the submission of charge sheet or final report by the police under sub-section (1) of section 173. Filing of Narajee petition also does not preclude such further investigation. Kamaluddin Vs. The State 11 MLR (2006) (AD) 78. Code of Criminal Procedure, 1898 Section 173(3B) - Further investigation can be made on discovery of new or additional evidence - There is no legal bar on further investigation and submission of supplementary charge-sheet upon collection of new and additional evidence as provided under section 173(3B) after submission of charge-sheet or report under sectionl73(1) of the Code of Criminal Procedure. Tareq Shamsul Khan @ Himu and others Vs. The State 12 MLR (2007) (AD) 130. Code of Criminal Procedure, 1898 Section 195(1)(c) - Complaint in respect of forged document used in judicial proceedings to be lodged by the court concerned. Section 561A - Quashment of proceedings when not initiated in accordance with law. As provided under section 195(1)(c) proceedings in respect of document forged and used in connection with any judicial proceedings shall have to be initiated on the complaint of the court concerned. Proceedings initiated on direct private complaint is barred and as such the proceedings started on such complaint being abuse of the process of the court has been quashed by the High Court Division, which the apex court held to be perfectly justified. Kazi Farhad Hossain(Munna) Vs. Md. Golam Must afa Sarwar and others 12 MLR (2007) (AD) 127. Code of Criminal Procedure, 1898 Section 195(1)(c) and 476 - Power of appellate court to lodge complaint against forgery of documents used in connection with judicial proceedings. As provided under section 107 of the Code of Civil Procedure, 1908 the court of appeal has all the powers of the trial court. It is competent to do what the trial court failed to do. It can make complaint under section 195(1)(c) read with section 476 of the Code of Criminal Procedure in respect of forgery of document used in the judicial proceedings before it. Messers N.F.M Universal Estate Ltd. represented by its Managing Director Abdul Awal Minto Vs. A.N.M Obaidul Islam being dead his heirs Guishan Begum and others 13 MLR (2008) (AD) 52. Code of Criminal Procedure, 1898 Section 195(1)(c) - Complaint as to forgery of document used in proceedings before Settlement officer When the original of the alleged forged deed is not produced in connection with the proceedings before the Settlement officer there was no scope of holding any enquiry as to the alleged forgery. No enquiry can be held on the basis of copy of the deed and as such the Settlement officer was not competent to lodge the complaint. Therefore the apex court did not find any illegality with the proceedings started on private complaint. Abdus Salam alias Md. Abdus Salam Vs. Samala Bibi and others 13 MLR (2008) (AD) 27. Code of Criminal Procedure, 1898 Section 195(1)(c) - Initiation of criminal prosecution by private complaint in respect of forged document Law is well settled that when the original forged document is used in any judicial proceedings, the court concerned shall have to send the complaint in respect of such forged document to the Magistrate of competent jurisdiction and in such a case a private complaint is barred under section 195(1)(c) of the Code of Criminal Procedure. But in case where photocopy is used in the judicial proceedings criminal prosecution can well be initiated on private complaint and pendency of civil suit will not be a bar. State Vs. Sailendra Chandra Borman 14 MLR (2009) (AD) 52. Code of Criminal Procedure, 1898 Section 200 - Examination of the complainant is not always necessary when it does not cause any prejudice - Omission to examine is an irregularity curable under section 537 Cr.P.C. In the instant case cognizance was taken by the Magistrate on the basis of judicial enquiry report during which the complainant alongwith other witness were examined. The apex court held there was sufficient compliance with the requirement of law and as such there was no illegality in taking cognizance and the irregularity if any, was curable under section 537 of the Code of Criminal Procedure and accordingly setaside the impugned judgment and order passed by the High Court Division and directed the Metropolitan Sessions Judge to proceed with the case. Ahammad Ismail Vs. Md. Rafiqul Islam and others 12 MLR (2007) (AD) 236. Code of Criminal Procedure, 1898 Section 200 - Examination of complainant Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 17(2) - Tribunal sending the complaint to the police station for investigation without examining the complainant - Nothing wrong is there. The tribunal sent the complaint to the police station for investigation without examining the complainant under section 200 of Cr.P.C. The High Court Division held there was nothing wrong and discharged the rule which the apex court found perfectly justified. Afroza Jesmin Vs. the State 12 MLR (2007) (AD) 303. Code of Criminal Procedure, 1898 Section 200 - Examination of the complainant the purpose is to ascertain the prima facie truth or otherwise of the allegations by intelligent exercise of judicial mind. The purpose of examination of the complainant under section 200 of the Code of Criminal Procedure, 1898 is to ascertain the prima facie truth or otherwise of the allegations. Such examination is not an idle formality. Alhaj Abul Kashem Vs. The State 11 MLR (2006) (HC) 73. Addition of Parties A private party or a prosecutor cannot be rd as of right in a criminal appeal BLT the court may in its discretion hear the party in port of or opposition to the order/ judgment under challenge in appeal. Tayazuddin & Anr Vs. The State & Ors. 10 BLT (HCD)-52 Added as party in criminal proceeding The Informant as a matter of right cannot be heard and added as party in criminal proceeding though initiated at the instance of Informant BLT the Court can in its discretion hear the party in support or in opposition of the criminal proceeding before a court of law A. Kader (Mobail Kader) Vs. The State & Ors. 10 BLT (HCD)-219 Substitution of the legal representative of a deceased appellant in a criminal appeal Held: Son of the deceased appellant has an interest in the appeal and may be allowed to prosecute the appeal though there is no express provision in any law permitting the substitution of the legal representatives of a deceased appellant in a criminal appeal. S. Talibur Rahman Vs. The State 10 BLT (HCD)387 Question arose as to how the trial of complaint case and police case, arising out of the same incident 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. During that case the Trial Judge may call the witnesses mentioned in the police case, if they are not already examined on behalf of the complaint, as court witnesses under Section 540-A of the Code of Criminal Procedure, so that they can be cross examined by both the parties. If the trial ended in conviction in the Complaint Case, the Public Procedure 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 in so far 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. Motaleb Mondal Vs. The State & Ors 14 BLT (HCD) 284 Whether the dying declaration is a subsequent embellishment The fact of making dying declaration by the deceased disclosing the names of the appellants as his assailants as stated by P.Ws.2, 3, 4, 8 and 9 is not credible, as such fact did not find place in the First Information Report. P.W.I also in his deposition did not support the same through he was present by the side of his deceased son all through and shifted him to the hospital. It is well settled that through First Information Report is not substantive evidence, as the earliest recorded version of the prosecution case it has such importance. Had the deceased made any dying declaration as said by P.Ws.2, 3, 4, 8 and 9 such fact would find place in the First Information Report. Thus we find that the story of the dying declaration is a subsequent embellishment. Jabbar & Ors. Vs. The State 14 BLT (HCD) 166 Section-4(1) All proceeding under the Code for collection of evidence are "Investigation" — Investigation is not the solitary area for Judicial scrutiny in criminal trial and Criminal trial cannot be allowed to depend solely upon the probity of Investigation. It is well neigh settled that even if the Investigation is illegal or suspicious evidence must be scrutinized independently of the import of the Investigation. Otherwise, the Criminal Trial will plummet to the level of investigating officers ruling the roost. Court must have predominance and pre-eminence in Criminal Trials over action taken by Investigation Officers. Criminal Justice cannot be made a casualty for wrongs and defects committed by Investigating Officers in the case. If Court is convinced that testimony of a witness to occurrence is true, it is free to act on it albeit the Investigating Officers suspicious role in the case. If offenders are acquitted only on account of flaws or defects in Investigation, the cause of criminal justice becomes the victim, Criminal Justice is always to be salvaged despite defects in Investigation. The State Vs. Ershad Ali Sikder & Anr. 11 BLT (HCD)-102 Section-4 (1) (q) "Place"- a particular case may also be tried in a place other than the normal Place when the sitting of the Court of Sessions takes place. Sayeed Farook Rahman Vs The Sessions Judge. 5 BLT (AD)-225 Sections -5(2), 29(2) The inquiry should be held according to the provisions of the Code where the enactment which creates the offence indicates no special forum or procedure. Section 5 of the Code provides for the procedure to be followed in every inquiry or trial in regard to the offence under the Penal Code as well as under the other laws. In respect of other laws, the procedure in the Code are subject to the enactments which regulates the procedure in such cases. Hayder Miah Vs. Labour Court & Ors. 10 BLT (HCD)-202 Section-9 (2) Section 9(2) authorizes the Government to direct at what place or places the Court of Sessions shall hold its sitting-if there is a Special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Farook Rahman Vs The Sessions 5 BLT (AD)-225 Section -10 read with Special Powers Act, 1974, Section -3(2) Prejudicial activates in Metropolitan Areas A Distric Magistrate or Additional District Magistrate has no power to make orders of detention in respect of a person who has acted or is acting or is about to act in a pejudicial manner within a Metropolitan. Anowar Hossion & Ors Vs. The State & 11 BLT (HCD)-392 Section-35A The Tibunal ordered that the period during the accused remained in custody conviction should be deducted from the sentence awarded. Such deduction can zed in view of provision of section the Code of Criminal Procedure BLT to that section provides that such deduction cannot be allowed when minimum 'sentence is provided in law. Habibur Rahman Vs. The State 8 BLT (HCD)-119 Section-35A Convict appellant sentenced to suffer imprisonment for 10 years -The appellant was in custody from the his apprehension on 4.5.1995 till the date of delivery of judgment comes to 3 years 6 months and 26 further appears that he was in jail after delivery of judgment before he was enlarged on bail by this court on 27.4.2005 which comes to 6 years 4 months and 22 days and in total he was in custody for 9 years 11 months 22 days. Though the convict appellant was enlarged on bail on 27.4.2005 BLT the bail order was sent to the office of the Deputy Commissioner, Lakshmipur on 7.5.2005as is evident from the margin of the order sheet dated 27.4.2005. The convict appellant was not released from jail before receipt of the bail order which in fact was not received earlier than on 7.5.2005 and as such the convict appellant served out sentence of more than 10 years on 7.5.2005. In view of the fact and circumstances of the case we consider it to be a fit case to invoke Section 35A of the Code of Criminal Procedure for the purpose of counting the period of sentence already undergone by the convict appellant before and after delivery of judgment. Abdul Gani Ganya Vs. The State 15 BLT (HCD)-47 Section -35A The appellants and the petitioner were apprehended on the spot on 16.3.1999. They had undergone considerable period in custody proceeding to their conviction and sentence. Some of them have been enlarged on bail subsequently. On consideration of the above, we are of the view that ends of justice will be met if the accused persons are given the benefit of section 35A of the Code of Criminal procedure. Ful Miah & Ors Vs. The State 15 BLT (HCD)-322 Section- 35A Whether concessionary provision of punishment as provided in section 35A of the Code is quite inconsistent with the scheme of the Special Powers Act Held: The Provision of Section 35A with Sub-Section (1) and (2) has been cast in mandatory form by amending the Code to effect deduction of imprisonment in cases where convicts may have been in custody by obliterating and substituting the earlier provision of Section 35A where deduction of the period was left to the discretion of the Court -the appellant in this case who was arrested by the police on 13.12.2001 and was in jail custody until he was convicted and sentenced by the Tribunal by pronouncement of judgment and order of conviction on 25.5.2004 and as such is entitled to the deduction of the period from the sentence of imprisonment. Hazarat Ali Vs. The State 15 BLT (HCD)-466 Section-51 Whenever a person is arrested by a police officer under a warrant, the officer making the arrest may search such person and place in safe custody all articles other than necessary wearing- apparel found upon him. Sukkur Ali Kha Vs. The State 6BLT (HCD)-98 Section-54 read with Special Powers Act, 1974 Section 3(1) An arrest of a person under section 54 of the Code can only be made by a police officer under the circumstances specified therein without an order of a Magistrate. Whereas, an order of detention is made if the authority is 'satisfied' that the detent had acted or is acting or is about to act prejudicial activities within the meaning of "Prejudicial-Act" under the Special Powers Act. This 'satisfaction' as referred to is that of the authority and its satisfaction cannot be replaced by that of a police officer. This 'satisfaction' of the authority is subject to judicial review and this Court can look into this subjective satisfaction of the authority objectively. In respect of these detents, the 15 Years Digest authority made the orders of detention, the moment the police officer made proposal for detention after arrest under section 54 of the Code. This shows that the report of the police officer replaced the "satisfaction" of the authority in making an order on detention. Therefore, it is beyond the schame of the detention law that an order of detention can be made in respect of a person on the basis of a report of the police] officered after he was arrested under section 54 of the Code. Md. Saifuzzaman Vs. The State & Ors 11 BLT (HCD)-410 Section-54 Binding guidelines (i) The Police officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest such officer shall obtain the signature of t arrestee with the date and time of arrest in the said memorandum. (ii) The police officer who arrested the person must intimate to a nearest relative of the arrestee and in the absence of the relative, to fl friend to be suggested by the arrestee, as so:? as practicable BLT not later than 6(Six) hours of such arrest notifying the time and place of arrest and the place of custody. (iii) An entry must be made in the diary at to the the ground of arrest and name of the person who informed the police to arrest the person or made the complaint along with in address and shall also disclose the name and particulars of the relative or the friend as the case may be, to whom information given about the arrest and the particulars of police officer in whose custody the arrestee is staying. Md. Saifuzzaman Vs. The State & Ors. 11 BLT (HCD)-410 Sections-68, 75 A warrant of arrest is an order addressed to a person usually to a police officer to do any particular act, such as, the apprehending and production of an offender or a search for a thing. A summons on the other hand, is always addressed to the person who is required either to attend or to produce a document or thing. Therefore, it will appear that this power of issuance of summons or a warrant is neither an ordinary nor an additional power of a Magistrate under Section 36 and 37 of the Code of Criminal procedure. We are therefore of the view that no vesting of power is necessary upon any Tribunal or a Court for issuance of any process as per provision either under Section 68 or of Section 75. Hayder Miah Vs. Labour Court & Ors. 10 BLT (HCD)-202 Section-94(1) No such power is vested in law to the learned Sessions Judge to allow any prayer for seizure of banking documents for the purpose of inspection. So, while no proceeding is either pending in any Court or before any police officer for investigation of any offence, the order directing for seizure of document is without jurisdiction. Islami Bank Bangladesh Ltd. Vs. Dist. Anti-Corruption Office & Anr. 11 BLT (HCD)-246 Section-99A Impugned under has been passed under Section-99A of the Code— we are led to the opinion that no prior notice is necessary for issuance of the impugned order—if any news paper or document contains any matter publication of which is punishable under section 295A of the Penal Code, Government is authorized to declare the said publication to be forfeited to the Government. Junaid K. Doja Vs. The State & Ors 9 BLT (HCD)-293 Section-99A(1)(c) To forfeit a publication it is enough if it "appears to the Government" that a certain publication contains any matter as is referred to in sub-section (1) of section 99A. The Government is only required to state by notification in the official Gazette the grounds of its opinion, not its satisfaction or formation of opinion. Sadaruddin Ahmed Chisty Vs. Bangladesh & Ors 5 BLT (AD)-199 Section-103 The search of a place and seizure of thing by the police must be conducted in the presence of two or more respectable inhabitants of the locality. Sukkur Ali Kha Vs. The State 8 BLT (HCD)-22 Section-103 Search and seizure In the context of the realities obtaining in our society in the wake of continuous deterioration of the law and order situation, it is almost impossible now-a-days to get any independent local witness to support the prosecution case involving offences under the Arms Act or of or of smuggling. In almost all such cases the local seizure list witnesses come to the witness box to state that they did not see the recovery of the incriminating articles and that they put their signatures /LTIs in blank papers for obliging the police officers. In such circumstances, the Court should not take too rigid a view regarding the provisions of Section 103 of the code in the absence of any special reasons. The court is competent to convict the accused relying on their testimony. Kashem Vs. The State 9 BLT (HCD)-469 Section-103 Rules Regulating Search In the context of realities of the society very few local witnesses are available to depose against their powerful neighbours or habitual miscreants. In almost all cases they come to the court to say that they signed blank papers on the asking of the police and disown their presence at the time recovery of incriminating articles. In such circumstances, absence of evidence from local witness should not be blown too far. There is no warrant of law that evidence of the members of the law enforcing agencies must have corroboration from other sources. Billal Miah Vs. The State 8 BLT (HCD)-352 Section -103 The compliance of section 103 Cr. P.C. was not necessary in the present case as we find that the arms and ammunition were recovered from the accused appellants in a sequence when they tried to hide the arms and ammunition hurriedly beneath the bed sheet and tried to flee away and not in a sequence for search of the house. Md. Asadul Hossain Vs. The State 14 BLT (HCD)141 Section-103(2) Read with 103 (1) The requirements of section 103 (2) read with 103(1) are that the entire search from the beginning to the end must be conducted in presence of two respectable local inhabitants and the requirements are not fulfilled if the search and the seizure have taken place either preceding the arrival of the local inhabitants or takes place after their departure from the place of search- any search and seizure without strictly complying the provisions must be deemed to be illegal and must be left out of consideration in a criminal trial. Habibur Rahman Vs The State 3 BLT (HCD)-6 Sections-107,117 & 145 Security for keeping the peace and order to give security Whenever there is a dispute relating to possession of any immovable property, the proper course for the Magistrate is to take action under Section 145 of the Code of Criminal Procedure for deciding the factor of possession of the contending parties in the disputed property once for all on taking evidence. BLT under special circumstances the Magistrate is competent to take action under Section 107 and 117 of the Code where the dispute if he satisfies if there is imminent apprehension of breach of the peace which demands an emergent action for keeping the peace. When in a case there is an apprehension of breach of the peace over and ancestral immovable property arising out of ancestral both the parties it is patently unjust and illegal to ask one of the parties to furnish a bond of good behaviour giving an undue advantage over him to the other party. Azhar Rahman & Ors. Vs. The State 8 BLT (HCD)-272 Section-145 If a person is rightfully in possession of his land, his possession should be protected and those who want to commit breach of the peace should be prevented and dealt with by the law enforcing agency. The order of the Deputy Commissioner does not appear to be an order which can be termed as one under Section 145 of the Code of Criminal Procedure. Banamali Pal Vs. Md. Nazrul Islam & Ors 5 BLT (AD)-113 Section-145 The impugned proceeding under Section 145 Cr. P.C. was the result of a machination of the second party-respondents that they were falsely shown as first party to the proceeding in the police report, that they are in possession of the disputed land from the time of their ancestors having got their dwelling houses thereon, that there is civil litigation between them which is pending and that the receiver was appointed by the learned Magistrate without making an order of attachment of the disputed land as contended by the Advocate-on-Record for the petitioners- Held: The nitial order drawing up the proceeding under section 145 Cr. P.C. and appointing a receiver for the disputed land was passed by the learned Magistrate on 15.10.1985 i.e. more than 10 years before- The petitioners will get an opportunity to submit before the learned Magistrate whatever they have got to say with regard to their alleged possession in the disputed land and the alleged fraud said to have been committed by the second party in brining about the proceeding in question. Shahidur Rahman & Ors. Vs. Muhammad Ali 4 BLT (AD)-125 Section-145 The Civil Court having already passed an order regulating the possession in respect of "*~e disputed property, the Criminal Court ;t its authority under Section 145 Cr.P.C. to deal with the same subject matter of the civil suit as contended by the learned Advocate for the petitioner-Held: The learned judges on consideration of the facts and circumstances of the case appear to have taken the correct view that the order of attachment of the disputed property and the appointment of receiver dated 22.4.91had been passed by the Magistrate under Section 145 Cr. P. C. which were upheld by the High Court Division on 22.1.96 in Criminal Revision No. 783 of 1991 and that the learned District Judge passed an order for maintaining status quo long after the order 12 had been passed by the Magistrate on 22.4.91. The ' concerned Magistrate therefore, did not commit any illegality in rejecting the petitioner's prayer for vacating the direction given on 6.8.97 for handing over the charge of the property in question to the receivers. It does not appear that the impugned judgment of the High Court Division suffers from any illegality. Shebail Mohanta Sree Kader Nath Achari Vs. Khetesh Chandra Bhattacharjee & Ors 7 BLT (AD)-216 Section-145 Attachment- Appointment of receiver It appears that the revisional Court below found that there was an apprehension of breach of peace and neither party could adduce cogent and reliable evidence to prove their respective possession in the disputed plot of lands and consequently the Court below passed an order for attachment till disposal of the civil suit. It is on record that the second party filed Title Suit No. 25 of 1993 in the Court of Subordinate Judge against the first party in respect of the disputed land. Hence the order passed by the revisional court below was rightly affirmed by the High Court Division. Abul Kalam Azad & Ors. vs. Osman Ali 7 BLT (AD)-298 Section-145 There are civil suits in respect of the case land between the same parties, wherein an order of injunction has been passed by civil Court. Although pendency of a suit is not a bar in drawing up a proceeding if the learned Magistrate finds that there is serious apprehension of breach of peace over the case land, BLT if the Civil Court passes an order of injunction and has regulated the possession of the subject matter of the proceeding, the learned Magistrate does not retain any jurisdiction over the same subject matter. Afsar Ali Khan & Ors. Vs. Md. Lutfar Rahman & Ors 8 BLT (HCD)-323 Section 145 Appointment of a receiver Magistrate exercising jurisdiction under section 145 Cr. P.C. drawing up a proceeding could in an emergent situation attach the case land in order to prevent imminent preach of the peace. The 2nd proviso to section 145 Cr.P.C. authorises the Magistrate to attach the subject matter of dispute at any time when he considered the case on of emergency and as such the Magistrate is required to record an emergent situation exists or existed for passing an order under the aforesaid provision. Haripada Dev Vs. Chitta Ranjan Dev and Ors. 12 BLT (AD)-92 Section-145(1) Whether a proceeding is said to he drawn up under Section-145(1) when the learned Magistrate inadvertently did not make any formal order BLT issued show cause notice upon the petitioners. A proceeding under Section 145 (1) of the Code is said to have been drawn up, if the Magistrate upon perusal of the police report or otherwise is satisfied that a dispute likely to cause breach of peace exists concerning any land or water, 'he shall make an order so satisfied and requiring the parties concerned in such dispute to attend his court….. Unless these preconditions are fulfilled, such as he shall make an order in writing stating the grounds of his satisfaction and secondly, he shall have to ask the parties concerned to submit written objection in support of their respective claim of possession therein a proceeding cannot be said to have been drawn up. In the instant case, the learned Magistrate issued show cause notice upon the second parties only and no show cause notice was issued upon the first party. Therefore, we are of the opinion that the learned Magistrate did not issue any preliminary order under Section 145(1) of the Code. Afsar Ali Khan & Ors. Vs. Md. Lutfar Rahman & Ors 8 BLT (HCD)-323 Section-145(4) The Magistrate should have passed a preliminary order stating that he is satisfied that the dispute is likely to cause a breach of peach and that he should also state that there is emergency which compels it necessary to attach the case land for avoiding further deterioting apprehension of breach of peace over possession of the case land between the parties. It is duty of the Magistrate to pass and promulgate preliminary order at the earliest moment and unless such preliminary order is made—no order of attachment of the case land can be made. Afsar Ali Khan & Ors. Vs. Md. Lutfar Rahman & Ors 8 BLT (HCD)-323 Section-145 (7) A proceeding under section 145 of the Code of Criminal Procedure being of a quasi civil nature, the legislature had been careful to incorporate sub-section(7) there to providing for impleading of the legal representatives of the deceased party, to the proceeding and thereafter continue with the enquiry, It is so provided because in a proceeding under section 145 of the Code of Criminal Procedure a Criminal Court enquires not only as to the possibility of a breach of the peace BLT also incidentally the title in order to find and possession which finding of a civil nature and such finding survives even after the death of a party. Hazi Abdul Ali & Ors Vs Md. Mesbauddin 3BLT (HCD)-184 Section-145(7) If it is argued the section 145(7) of the Code of Criminal Procedure would be limited to the enquiry stage only and not to revisional stage, the answer would be that this provision of substituting the heirs of the parties would be extended even before this court while exercising its revisional jurisdiction if it is so requested for ends of justice. Hazi Abdul Ali & Ors Vs Md. Mesbauddin 3 BLT (HCD)-184 Section-145 & 561A Held: We have found that regarding holding Nos. 59 and 59/1 Humayun Kabir got an order of temporary injunction in his favour in Title Suit No. 223/97. The present proceeding was started on 20.11.1997. As the order of the civil court was passed earlier regarding possession of the property there cannot be any proceeding under section 145 of Criminal Procedure in respect of the same property. So we are of the view that the proceeding is liable to be quashed. Abdul Alim Vs The State & Ors 8 BLT (HCD)-289- Section -145 read with Section -561A In the instant case it is seen' from the materials on record that the Is' party by the evidence of the witnesses who are neighbour to the land has proved his possession in the land in the proceeding and as against that the 2nd party has not adduced any evidence to dislodge the evidence of the said witnesses. Since the order relating to possession of the land that has been made by the learned Magistrate is based of the evidence of the reliable witnesses and 11 consequent thereupon order directing the receiver to handover possession of the land to the 1st party is, in our view legally sustainable. Saber Ahmed & Anr Vs. Gura Miah 11 BLT (AD)-135 Sections-154 & 155 Under Section 154 or 155 of the Code, every information relating to the commission of a cognizable or non-cognizable offence when given to an officer-in-charge of police station is a First Information Report and of necessary in general, should be lodged on the earliest opportunity. In this, case, from the evidence, of P.W. 44 and other witnesses, the most of the accused persons used to stay in Bangabhaban since 15th August, 1975 and in the name of an unwritten command council used to govern the country till they were made to leave on the 4th November, 1975, Still then they were not without influence. The accused Major Syed Farook Rahman tried to force a mutiny at Savar and Bogra Cantonment and the accused Major Khondaker Abdur Rashid tried unsuccessfully to take over the command of 2nd Field Artillery Regiment in 1976, Again, in 1980 they made another attempt to overthrow the Government BLT still no Government took any punitive action against any of them, rather, they were all given their arrear salaries. The accused Major Syed Farook Rahman even contested the Presidential Election in 1986 (P.W. 44). So the apprehension of the information about his own life and limb cannot be said to be unreasonable. Under such circumstances, the delay in lodging the FIR cannot vitiate the trial. The State Vs. Lt Col. (Retd) Farook Rahman & Ors 9 BLT (Special Issue 2001) Section-154 Sou moto F.I.R by police It is now well settled that the FIR is not a substantive evidence. The statement made in the FIR can only be used for the purpose of contradicting and discrediting the informant under section 145, or corroborating him under section 157 of the Evidence Act, when he is examined as a witness (Agonoo Nagesia V State of Bihar, AIR 1966 SC 119)" Object of such first information report is to set the criminal law in motion by giving an information regarding commission of an offence to trace and bring the culprits to book (Hasib V State of Bihar, AIR 1972 SC 283). Acting upon a FIR, when the police upon investigation traced out the real offenders even including the informant they are statutorily required under section 173 of the Code to forward a report along with the accused to the Magistrate having power to take cognizance for trial. Under section 190 of the Code, it is the Magistrate who is only empowered to decide on the report and the materials sent as to whether to take cognizance of the offence against the accused sent up or not. In such case, we therefore find no statutory requirement to lodge suo moto a FIR and register another case thereupon on the result of successful investigation. Abdur Rouf @ Rab Howlader Vs. The State & Ors 11 BLT (HCD)-198 Section -154 Incident took place on 27.9.1994 at 8-30 to 9-00 A. M. First Information Report was lodged as manifested from First Information itself is at 12-05 hours. Place of occurrence was about 15 kilometer from Police Station. It came out from the evidence of Informant PW 1 that First Information Report was written at 4/5-00 P.M. and it was written on the place of occurrence. It came out further from the evidence of PW 1 that he went to Police Station before Magrib Prayer and it was night when First Information Report was laid with Police Station and Chairman (PW 8) had been with him Exhibit-2/3 is Inquest Report and from Inquest Report it reveals that Inquest had been performed by Police at 12-30 P. M. on 27.9.1994. Exhibits - 4 and 4(1) manifest that Chairman Nurul Islam (PW 8) on 27.9.1994 sent an application to Officer-in -charge of Begumganj Police Station intimating him that Sabir Mia, condemned prisoner, Abuj Taher and Abul Kashem appellants in front of Sonali Bank, Amanullahpur killed Delwar Hossain (Delu Mia). It is in the evidence of PW 12 (Investigating Officer) who was, also, Officer-in-charge of Police Station that he reached place of occurrence on receipt of a letter from Chairman Nurul Islam (PW 8). When First Information Report was lodged with Police Station after dusk,- the time of lodging First Information Report could not be stated as 12-05 hours This infirmity of grave nature remains totally unexplained by prosecution. Specific suggestion put forward to Informant PW 1 that Police on arrival of the place of occurrence got no incriminating matter and without lodging any First Information Report went back to Police Station and, thereafter, with the active help of the Chairman (PW 8), the First Information Report was lodged implicating the accused persons as perpetrators of crime. The State Vs. Sabir Mia & ors 11 BLT (HCD)-294 Section-154 Life blood of prosecution case project in First Information Report and unfurled at time of trial was that by way of Memorandum No.l4/96(Bohi-1) 997 dated 20.10.1998 and letter from Consulate General, Bangladesh at Dubai communicated through Memorandum No. 2192/Second Part dated 15.11.1998 disclosure came forth that condemned prisoner abducted Rubel, a five years old boy from Bangladesh to Dubai and said boy Rubel was sold to local Arabs to be used as camel jockey. Rubel sustained injuries when he was being used as camel jockey. Bangladesh Consulate got minor boy Rubel admitted in Hospital. Condemned Prisoner was apprehended with help of Dubai Police. Bangladesh Consulate took custody of Rubel.—Held: non-production of Memo No. Pav-14/96(Bohi:-1)/997 dated 20.10.1998 and memo No. 2992/Second part dated ,15.11.1998 wherein letters sent by Bangladesh Consulate General in Dubai had n referred to. The two Memos are foundation of criminal prosecution against condemned prisoner.—Fundamental Structure 'Prosecution case, thus have fallen down. State Vs. Abul Kashem 12 BLT (HCD)-165 Section-154 F.I.R.—Bonafied Mistake First Information Report it is stated that formant PW 1 approached Sirajul Islam 11) and on asking PW 11 made disclosure that mother-in-law and sister-in-of PW 1 and Faridur Rahman on J.6.2000 at 5-00 p.m. started towards the se of maternal uncle of deceased Surja lm BLT PW 11 in his testimony stated date of incident to be on 16.6.2000 and that date he met condemned prisoners keya Begum, Faridur Rahman and sed Surja Begum at Bangla Motor and on query Rokeya Begum told him that they were on way to maternal uncle's house of deceased Surja Begum and infirmity in the date had been manifested and prosecution case stood nullified. First Information Report is neither starting nor the ending of a criminal case. On the strength of First Information Report investigation commences. Admittedly occurrence took place on 16.6.2000 and the date 15.6.2000 occurring in the middle portion of First Information Report is nothing BLT a bonafide mistake and by this the truthfulness of prosecution case cannot be demolished and the insertion 15.6.2000 in place of 16.6.2000 in middle portion of First Information Report is a very insignificant matter which must be ignored. The State Vs. Rokeya Begum & Anr. 13 BLT (HCD) 377 Section 154 Second First Information Report The Second First Information Report was not at all valid and legal. Investigation performed on the basis of Second First Information Report and submission of Police Report in the nature of charge sheet and commencement of Trial pursuant of Charge sheet on Second First Information Report was of no legal consequence and effect and recording of conviction for offence of section 302 of Penal Code and consequential sentence upon convict-appellant were absolutely illegal and legally infirm. Kazi Mahbubuddin Ahmed Vs. The State 13 BLT (HCD) 524 Section-154 First Information Report in a criminal case is an extremely vital and a valuable piece of evidence. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which crime was committed, the name of the actual culprits and the part played by them. Delay in lodging First Information Report quite often results in embellishment and embroidery which are creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Mujibor Rahman Vs The State 14 BLT (HCD) 109 Section 154 Delay in filing First Information Report Though, Informant PW1, PW2 and PW3 noticed marks of injuries on head and other persons of the body of deceased Hosna Nahar yet the cause of death could not be ascertained and eventually an Unnatural Death Case was registered with Police Station. Sometime had been consumed in procuring Post Mortem Report and on getting contents of Post Mortem Report law was set on roll by father of deceased Hosna Nahar on laying a First Information Report with Police Station. In First Information Report explanation had been offered in the terms that to ascertain cause of death of his daughter he insisted for Post Mortem examination of her daughter deceased Hosna Nahar at the time of registration of Unnatural Death case and on receipt of Post Mortem Report and, also, getting information from neighboring witnesses became fully aware of incident and, thereafter, lodged First Information Report on 27.3.2000. Explanation offered in First Information Report as to delay appeared to be very much plausible and acceptable. The State Vs. Md. Ainul Haque 14 BLT (HCD) 234 Section -154 read with Evidence Act, 1872 Section -114 (g) First Information was written one. It was prepared and submitted by Informant PW 1, PW 23, Police Officer Akber Ali Khan on receipt of the written complaint registered it as First Information Report. Informant PW 1 standing on witness box proved First Information Report and her signature appearing thereon. First Information Report and her signature had been exhibited as Exhibit-1 and 1/1 respectively. Informant PW 1 did not offer evidence before Tribunal in the term of version made by her in First Information Report and she was declared! hostile by prosecution. Informant PW 1J though, had given a go-bye to her version embodied in First Information Report BLT truth could not be buried when she proves First Information Report and her signature on First Information Report. Evidence of Informant PW. 1 before Tribunal demonstrated that in order to save her rapid husband, the convict-appellant made a departure from the factuality that came inn being in the earliest record of the case i.e. First Information Report. In this context it is posited that it could not be believed at all that a woman would lay a false written complaint in respect of the chastity of her daughter against her own husband if them would not have occurred any such heinous incident at all and if her husband would not have deflowered her deaf and dumb daughter, the victim of crime. Subsequent version laid bare by Informant PW 1 before Tribunal manifests that she did not ten evidence fairly and did not bring to factuality truth and factuality in Tribunal. Tribunal positively held that Informant (PW1) hers having been present in Police Station lodge First Information Report and she had been striving to conceal the incident to save her band from penalty. Abu Taher Vs The State 14 BLT (HCD) 68 Section-154 read with Evidence Act, 1872, Section-67 It appears that the occurrence took place on .5.1997 at 13.00 hours, BLT the First information Report was lodged on 9.6.1997 13.45 hours. BLT from the evidence on rd the explanation given by P.W.I in using such delay in lodging the First formation Report was not proved by evidence. So the First Information Report as lodged after an inordinate delay, which have a long rope to the prosecution to conduct the case and makes the prosecution case doubtful. Moreover the First formation report is Exbt. I, it was a written ejahar. It does not bear the name or signature of it scribe. P.W.7 testified that he recorded the case on receipt of the written ejhar. On the other hand the informant sely stated that the daroga (P.W.7) orded the First Information as per verbal statement. The contents of the ejahar had not n proved under section 67 of the Evidence t. So the First Information Report was illegally admitted into evidence and marked as Exbt.l. On the above grounds the First Information Report cannot be considered and should be left out of consideration Md. Tariqul Islam Vs. The State 14 BLT (HCD)-407 Section-154 Extra-ordinary delay -Delay in laying First information Report and inordinate delay in transmission of First Information Report to Chief Metropolitan Magistrate, Dhaka given a room of doubt to the authenticity First Information Report and credit-worthiness has been put to challenge. A inference had been legitimately drawn that there were chances of manipulation in First Information Report by falsely roping in the accused persons after due deliberation of the occurrence. Rustum & Ors Vs. The State 14 BLT (HCD)-435 Section - 154 read with Nari-O-Shishu Nirjaton (Bishesh Bidhan) Ain, 1995 Section-6(3) In the First Information Report the victim asserted that the accused entered into her hut by opening the door and assaulted her by log (????? ????) and caused injuries on her head, waist and right arm BLT in her evidence she stated that accused entered by cutting fence. Moreover medical report (Exht.4) do not provide any support regarding injuries as alleged by the victim. It is true that first Information Report is not a substantive piece of evidence BLT as the earliest recorded version the same may be looked into for the purpose of comparing the same with the statement made subsequently during trial by the prosecution witnesses. Any deviation or departure from the FIR story makes the prosecution case doubtful and casts serious doubt as to the credibility of the prosecution witnesses. Partial departure creates suspicion as to the truth of the prosecution case and total departure from FIR story sometimes warrant exclusion of the prosecution evidence from consideration. Rubel Vs. The State 14 BLT (HCD)-560 Section 154 It is true that the first Information Report is not the substantive piece of evidence BLT genesis of the case. The court can and should take notice to the earliest record of statement with regard to the prosecution case in context to the circumstances which makes the particular report of vital importance in the assessment of prosecution evidence. The court is entitled to note a conflict between the first recorded version of the prosecution case and the story that is made out in course of trial. Rawsan Ara Begum Vs. The State 15 BLT (HCD)-29 Section -154 read with Nari-O-Shishu Nirjaton Daman Ain, 2000 Section- 11(Kha) Delayed lodged of F.I.R -truthfulness -incident took place on 22.8.2001. It has been exposed to view from the testimony of PW 1 that her brother on getting information on 23.8.2001 recovered her with police force from her father- in -law's house in injured condition and kept her in the house of her husband' kindred elder brother Rabi Dutta (PW6).It, also, emerged from the testimony of PW1 that her brother (PW 4) got her admitted in Comilla Sadar Hospital on 24.8.2001 and treatment was provided to her. Information could be conveniently supplied to the police Station by the brother of PW 1 on 23.8.2001 or 24.8.2001 when PW1 was allegedly recovered from the house of her father-in law. First Information Report could be laid with the police Station on 24.8.2001 when PW 1 was admitted into Comilla Sadar Hospital BLT no First Information Report was lodged after the incident. Curiously enough to note that First Information Report was lodged after a period of eight (8) days of the incident and it was registered with Police Station on 30.8.2001. Explanation offered in First Information Report for the delay caused cannot be characterized to be reasonable and acceptable explanation. Long delay in laying First Information Report throws a serious doubt in the truthfulness of prosecution version and this delay pulverized the integrity of prosecution anecdote. Structure founded by prosecution in securing conviction and sentence upon convict-appellant collapsed. Kishore Kumar Dutta Vs. The State 15 BLT (HCD)-174 Sections-154 & 157 The difference between sections 154 and 157 is that the information covered by the former section must be reduced to writing which is a condition precedent BLT in case of the later section, it is only that information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given. Md. Saifuzzaman Vs. The State & Ors. 11 BLT (HCD)-410 Section 154 and Section-161 In the instant Case it appears that the present informant lodge a G.D. entry over the self-same occurrence on the following date, BLT the same has not been brought on record to show the bonafide of the prosecution case which ought to have been treated as F. I. R and the present F.I.R. so lodged by the informant of this case is not F.I.R in as much as the same having been recorded long after recording of a G.D. entry of self same occurrence may be treated as Statement under section 161 of the Code of Criminal Procedure and nothing more. In absence of the G.D. entry in question we are in dark about the manner of occurrence or the alleged taking of part by the individual accused thereto and as such the F.I.R. Ext. I in this case should not be used against the accused appellants in as much as the same may be treated as embellishment, as the earliest document on point of time over the self-same occurrence has been with held without any cogent explanation. Korban ali & Ors. Vs. The State 11 BLT (HCD)-267 Section-154 and Section-162 In criminal cases to start with, First Information Report takes a prominent place. First Information Report is the first step in almost all cases of Investigation. First Information Report is only an initiative to move the machinery and to investigate into a cognizable offence on receipt of a particular information. It is only at the investigation stage that all details can be gathered. Whether a particular information amounts to First Information Report or not is essentially a question of fact which is dependent upon the facts and circumstances of a case. There is no law that since one Information is earlier in point of time the latter Report or Information is not a First Information Report and should be excluded as being hit by section 162 of the Code. The State Vs. Ershad Ali Sikder and Ors. 12 BLT (HCD) 481 Section-154 Read with 342 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, accused's attention having not drawn to the confessional statement. So, it must be out of consideration. Mohammad Rafiqul Islam & Ors Vs The State 5 BLT (HCD)-101 Section 156(3) Read with Section 190(1) The informant petitioner filed an ejahar on 27.3.85 Police after completing investigation submitted charge sheet on 25.7.85 against the three accused opposite parties and there on 6.11.85 the accused-opposite parties filed an application before the learned Magistrate for releasing them from charge and for holding a further investigation alleging that one Ahsan Ali made the extra judicial statement on 3.11.85 BLT that the learned Magistrate did not consider that application and sent the case to the Court of Sessions Judge for trial- the accused opposite parties did not move their previous petition for further investigation nor did they file any fresh petition for further investigation on 24.6.86 they filed an application before the learned Sessions Judge praying for holding further investigation and on that application the learned Sessions Judge directing the police for holding further investigation is a misconceived one not falling within the preview of Section 156(3) Cr. P. C. No provision of law for cancelling the charge sheet once filed against some accused persons and accepted by the Magistrate- learned Sessions Judge has acted illegally and without jurisdiction in directing for holding further investigation. Sukhuil Kumar Sarker Vs Kazwazed Ali Sabed & Ors 3 BLT (HCD)-143 Section-161 The statements made in the F.I.R cannot be relied upon as substantive evidence while trying a criminal case- It is an elementary knowledge which a Judge of the rank of Sessions Judge is supposed to have- It can at best be used to contradict or corroborate the maker and non else- Relied on (1) PLD 1957 (SC) (Ind) Page 197 (2) 42 DLR ADs 186- A Statement made u/s 161 Cr. P. C cannot utilized as substantive evidence- Relied on 17 DLR SC 40. Abdus Sobhan Vs The State 2 BLT (HCD)-22 Section-161 The Statements recorded under section 161 Cr. P. C. is not evidence. It can only be used to contradict, corroborate the witnesses and the same cannot be considered for conviction. Abu Bakker & Ors. Vs. The State 5BLT (HCD)-133 Section-161 Weight of evidence due to the infirmity in the statement of the P.W.6 recorded after 111 days of the occurrence by the I.O. without any explanation as to the delay in recording it is seriously affected and dismissed- appellants are entitled to benefit to doubt in this case. Haji Md. Jamaluddin & Ors. Vs. The State 1 BLT (HCD)-23 Section-161 Belated statement - P.W. 12 said before the Court that he did not disclose names of the accused persons to the police officer being afraid of his life and disclosed to the I.O. that whatever he had to say he would disclose before the Court of law. P.W. 24 Tofazzal Hossain, Investigation Officer also spoke that P.O. 12 declined to disclose in details everything to him. The broad to give any detail of the occurrence for fear of his life. Although he deposed everything in details before the court of law, Now the question is whether such a witness should be believe or not? A statement under Section 161 of the Code of Criminal Procedure is not a substantive evidence. In such a statement under Section 161 of the Code the witness is required to state what he saw and heard about the occurrence soon after. In this case, an explanation was given by P.W. 12 that due to fear of his life he did not disclose immediately to the police details of the occurrence - as a matter of fact, we do not find any valid reason to discard the evidence of P.W. 12 to hold it incredible. Belated statement in Court, if can stand the scrutiny of cross examination can be believed if not otherwise unbelievable. Mahmudul Islam @ Ratan Vs. The State 9 BLT (AD)-153 Section-161 Delay in examining the witnesses under section 161 of the Code. PW 9, PW 5, PW 6, PW 3, PW 10 and PW 7 having been examined under section 161 of The Code of Criminal Procedure after a period of 115 days, 33 days, 47 days, 101 days and 29 days, their statements in Court are required to be left out of consideration and no conviction can be awarded putting reliance on evidences of the above prosecution witnesses. Rustum & Ors Vs. The State 14 BLT (HCD)435 Section -161 If a relevant fact is not mentioned in the statement under section 161 of The Code BLT stated before Court by PW or PWs as evidence, the evidence of PW or PWs would not be rejected if the evidence or evidences is or are otherwise creditworthy and acceptable and omission on the part of the police official to record the statement under section 161 of The Code would not take away the nature and character of the evidence. Touhid & Ors Vs. the State 15 BLT (HCD)364 Section-162 Under section 162 of The Code of Criminal Procedure it is only after an investigation has started that a statement made by a person to a police officer in the course on investigation that is not admissible in evidence except to the extent mentioned in that section. BLT the investigation by the police does not always begin immediately after the case is registered or with the mere arrival of the Investigation Officer on the scene of the occurrence after the making of the First information report, BLT when the police take the first concrete step for ascertaining the offence and the culprits. Very often the First Information Report lodged with the police is not a complete document and during the interval between the First Information Report and taking of some step in the nature of investigation further information is furnished to the police and such further information is merely supplemental to the First Information Report and cannot be considered to be a statement made to the police during the course of investigation. Bachchu Sarder & Ors Vs. The State 11 BLT(AD)-53 Section-164 Statement made by the victim girl u/s 164 having retracted statement made subsequently, whether can be re-assessed in the leave petition- It is true that the girl's testimony becomes shaken, BLT then it was up to the trial and the Appellate Court to assess her evidence including other evidence as a whole. Since her evidence and the other evidence on record have been concurrently accepted by the said courts, there is hardly any point in raising the contentions again-Petition dismissed. Siraj Mal Vs The State 2 BLT (AD)-18 Section-164 Confession- statement of a person that he was with the dacoit is not a confession of committing dacoity. Md. Hadi Hasan Vs The State 3 BLT (HCD) 159 Section-164 Whether an accused can retract his statement at the time of examination under section 342 of Cr. P. C. In a case of confessional statement it is not absolute that the confession maker can retracted his statement only through filed an application, BLT he can retracted his statement at the time of examination under section 342 of the Code of Criminal Procedure. Md. Tajul Islam Khokon & Ors Vs. The State 6 BLT (HCD)-79 Section-164 The confession was specifically brought to the notice of the condemned prisoner while examining him under section-342 of the Code of Criminal (Procedure. BLT he did not complain anything regarding the nature of his confession- Confession to be true and voluntary. Khalil Miah Vs. The State 7 BLT (AD)- 245 Section-164 Confessional Statement- Before placing reliance on any confession the Court must satisfy itself that it has been properly recorded according to the provisions of Section 164 of the Code of Criminal Procedure. When the accuse does not implicate himself in the alleged offence and does not admit his guilt, his statement is clearly exculpatory in nature and there is no confession in the eye of law. To fill up quota of deficiency of the prosecution, accused Emdadul Haque had been kept in police custody for over 37 hours preceding his production before the Magistrate without any satisfactory explanation. This makes the so-called confession totally useless. Emdadul Haque & Anr. Vs. The State 7 BLT (HCD)-76 Section-164 Confession- Doubted The Magistrate P.W. 13 who recorded the confessional statement of the confessing accuse Akbor Ali has failed to satisfy us as to its truth and voluntariness since he failed to ask the confessing accused as to whether he was tortured during custody or that he gave any understanding to the confessing accused that whether he confess or not, will not be handed over to police custody-Moreover, it appears that the confessing accused made the confessional statement after coming from remand which in no way remove to doubt that it is (Confessional Statement Ext.7) the product of threat, coercion and physical torture. Md. Akbor Ali & Ors Vs. The State 7 BLT (HCD)-317 Section-164 From the evidence of P.W. 29 Md Moshraf Magistrate 1st class who recorded dying declaration accused Abdul Ali at 9.35 at night on the written requisition of Dr. M.A. Mannan at Sarail Upazilla Health Complex Exhibit-24. From a reading of the deposition of P.W. 29 who recorded dying declaration it appears that the injuries of accused Abdul Ali were specious for which he gave a dying declaration on the day before the confessional statement by another Magistrate cum T.N.O. was recorded. It is mysterious that although he was in the thana Health Complex at 9.35 P.M. at night for recoding dying declaration that is no discharge certificate from the hospital and there is nothing on record that he was taken to police station and then to the court on next day and under was condition. This depicts a picture that reflects highhandedness of the investigating agency in this case. In such view of the matter Exhibit-10 in our opinion, has been procured from its makers accused Abul Ali condemned prisoner, by physical torture, threat and intimidation. The State Vs. Md. Abdul Ali & Ors 8 BLT (HCD)-74 Section-164 Whether the confessional statement is true and voluntary. On perusal of the confessional statement we find that after recording the confessional statement, the learned Magistrate issues a certificate stating that "I believe that this confession was voluntarily made. It was taken in my presence and was read over to the person making it and admitted by him to be correct We have minutely perused the confessional statement, Vis-a-vis the retreated confession of the appellant and the evidence of P.W. 12 Md. Abul Hasem, the learned Magistrate P.W. 12 stated that there is a note in the confessional statement that accused Shahidul Islam was arrested by the police on 08.01.1992 at 3.00 p.m. and he was produced before him on 09.01.992 at 2.00 p.m. upon perusal of the record we find that the accused Shahidul Islam filed an application from jail on 18.03.1992 addressing the Chief Metropolitan Magistrate to the effect that his confessional statement was procured on torture and that he wanted to retract the confessional statement. The learned Magistrate upon receipt of the said application recorded an order stating that the record of the case has already transmitted to the learned Sessions Judge for trial. From the above facts it appear to us that the application for retracting confession was made at a belated stage after more than two months of making confession. If the confession was obtained in oppression, there was no reason on the part of the accused to take such a long time for reaction. The injuries as noticed by D.W. 1 Mulla Nurul Islam on the person of the appellant were admittedly simple injuries which might be caused by friendly hands. In premises, we are of true and voluntary. Md. Shahidul Islam Vs. The State 8 BLT (HCD)-150 Section-164 The statement recorded under Section-164 of the Code is not substantive evidence BLT such statement can only be used for contradicting the maker of it under Sections-45 and 155 of the Evidence Act or for the purpose of corroborating him under Section-157 of the Evidence Act. Md. Nurul Alam Vs. Ali Jan & Ors. 8 BLT (AD)-23 Section-164 The High Court Division from consideration of the confessional statement Exhibit-8 found that this accused was produced before the recording officer on 28.10.1986 and the :used reported that he was arrested at 11.00 a.m. on 26.10.1986 and was produced before the recording officer from Court Hazot on 28.10.1986 and from this the High Court Division came to the finding that this condemned prisoner was kept in police custody for two days without any explanation. It appears from the judgment of High Court Division that have considered the pros and cons of the case on consideration of the evidence of the ling officer as well as the confessional lent and also considering several decisions of the Superior Courts of the Subcontinent came to the finding that the confessional statement is not true and voluntary. Learned Deputy Attorney General though strenuously argued that this case of murder BLT the fact remains that he failed to point out any illegality in the judgment of the High Court Division which may call for our interference at this stage. The State Vs. Md. Farid Karim & Ors. 8 BLT (AD)-87 Section-164 Product of intimidation and coersion Appellant is a married women—the woman of our society is not blind, rather they are well conversant out to the fact that the woman who engaged in sex trade are extremely hatred by our society. There are also hatred of the religious people too against them, and so far the human rights is concern that remains far away from them and for all the time they ought to have faced strong resistance by local people extortionist and mastan. This nature of circumstances invariably will be waiting or those traders, in such circumstances a married woman, the convict appellant has voluntarily came forward to make such statement involving herself in immoral acts, it is neither believable nor acceptable. It might be the product of intimidation and coersion. Joshna @ Reshma Vs The State & Ors. 10 BLT (HCD)-88 Section-164 Admissibility—Held: We have perused the statement along with evidence of P.W 11 Dewan Jakir Hossain. The aforesaid witness recording the statement admitted in cross-examination that the accused signed the statement in English and was asked the questions in English and Urdu BLT he recorded the statement in Bengali. Under Section 164(2) of the Code such confessional statements are required to be recorded and signed in the manner as provided in section 364 of the Code. Section 364 of the Code provides that the whole examination including every question put to an accused and every answer given by him shall be recorded in the language in which he is examined and if it is not practicable it can be written in the language of the Court or in English and if the accused does not understand the language in which it is written it shall be interpreted to him in a language which he understands to enable him to get a chance to explain or add to his answers. On perusal of the confessional statement (Ext-9) it appears to us that the same has been recorded by P.W. 11 Dewan Jakir Hossain in Bengali which the accused appellant admittedly does not understand and that though the witness knew English, the said statement has not been interpreted to the accused in the said language or any other language consideration to the perfunctory manner in which the statement has been recorded without complying with the requirement of law, we are of the view that the aforesaid confessional statement. (Ext. 9) is not admissible in law. Sajid Hossin Vs The State 10 BLT (HCD)-442 Section-164 Whether a confession Partly exculpatory and partly inculpatory was at all a confession or admission of a Crime. Held: The point was ultimately set at rest by a Full Bench of the Allahabad High Court in the case of Emperor V. Balmakund, AIR 1931 Allahabad 1 (F. B). The Full Bench approved the majority views taken by different Benches observing that those authorities actually established no more than "(a) where there is other evidence a portion of the confession may in the light of that evidence be rejected while acting upon remainder with the other evidence, and (b) where there is no other evidence and the exculpatory element is not inherently incredible, the court cannot accept the inculpatory element and reject the exculpatory element." The Full Bench then answered the reference as follows: "where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false; the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting exculpatory element as inherently incredible." The Supreme Court of India in the case of Nishi Kant Jha V The State of Bihar, AIR 1969 (SC) 422 approved the views of the Allahabad High Court. Our Appellate Division in the case of State Vs Lalu Mia and another 39 DLR (AD) 117 did not depart from the views taken by the F Bench in the case of Balmakund and t Supreme Court of India in the case of Nis Kanata Jha (supra). These principles a being followed over a century and we find no reason to take contrary view. The State Vs. Entaj Ali Sheikh 12 BLT (HCD) 3 Section -164 Confession of a co-accused implicating other co-accused Confession made by a confessing accused can be very much relied upon for awarding conviction upon confessing accused hims BLT confession of accused implicating other co-accused can be, also, a basis for awarding conviction upon the non-confessing accus if the confession is supported by other evidences on record. Nuruddin alias Shahabuddin & Anr Vs The State 13 BLT (HCD) 4 Section -164 Judicial Confessional Statement of co-convict Record indicates that convict-appellant was arrested on 2.8.1999 in connection with the case in hand. There is nothing on record demonstrating that convict-appellant was taken on remand to bring to light from him the crime episode. Record, also, reveals that co-convict Bashir Ahmed was taken on remand on three occasions and he was under lice custody for a period of nine (9) days in three terms, three days in each term. Judicial confessional statement was recorded by PW 3 on 13.12.1999 wherein the recovery event had been disclosed. Strange enough to note that before Judicial confessional statement recovery episode of skeleton of Motahar Member had been carried on. The cart went ahead of the horse and this casts a serious doubt in respect of truthfulness of prosecution case in respect of bridgment of convict-appellant in commission of crime. The recovery of skeleton of Motahar Member at the alleged pointing of convict-appellant along with co-convict Bashir Ahmed cannot be depicted as corroborative evidence to judicial confessional statement of co-convict Bashir Ahmed. Abdus Salam @ Biplob Vs The State 13 BLT (HCD)-567 Section-164 The accused Mafizuddin was arrested on 22.08.1997 and he was produced before the recording Magistrate on 24.08.1997 and there is no explanation for delay in producing the condemned prisoner Mafizuddin before the recording Magistrate within the specified time —The High Court Division opined that it is unsafe to rely on such confessional statement to convict accused Mafizuddin since same has been recorded after detaining him in police custody beyond the period permitted by law. The High Court Division has rightly held that the confessional statement of accused Mafizuddin is not true and voluntary. The State Vs. Mofizuddin & Ors 15 BLT (AD)-104 Section-164 read with Evidence Act, 1872 Section-30 When the matter of confessional statement does not involved his/herself with the alleged offence, it no confession at all, in such a case the prosecution should have placed the confessor as a witness instead of making him/her as accused in the case — the convict appellant posed herself having as immoral character. The cardinal question is now before us as to whether this statement bear any truthfulness since her statement was not corroborated by any P.Ws there by it lost of her credibility in its true sense— the statement of convict appellant made under Section 164 of the Code of Criminal procedure casts serious doubt about the truthfulness as well as genuineness of the alleged statement. Joshana @ Reshma Vs. The State 10 BLT (HCD)-88 Section-164 read with Evidence Act, 1872 [I of 1872] Section-80 In the instant case, the maker i.e., the victim while deposing as p.w 6 before the court did not support the prosecution case, she was cross-examined on behalf of the prosecution by declaring her hostile BLT the prosecution did not bring it to her notice the statement which was recorded under section 164 of the Code of Criminal Procedure. Moreover, no explanation was given as to why the magistrate who recorded the statement of the victim under section 164 of the Code Criminal Procedure was not produced before the tribunal for examination. For all these reasons, there was no scope of placing reliance upon the above statement recorded under section 164 of the Code of Criminal Procedure. Mir Hossain & Ors. Vs. The State 12 BLT (AD)-58 Section-164 read with Nari-O-Shishu Nirjaton Daman Ain 2000, Section-22 Section 22 of Ain of 2000 is almost akin to section 164 of The Code Distinction which is gathered is that in section 164 provision of recording confession along with the statement had been also provided and in section 22 of Ain of 2000 provision of recording a confession had not been provided. Wasim Miah & Ors. Vs. The State 12 BLT (HCD)-40 Section-164 Voluntary —voluntary means that one, who makes it out of his own free will, inspired by the sound of his own conscience. If the facts and circumstances surrounding the making of a confession appear to fling a doubt on the voluntariness and truthfulness of the confession, the court is to refuse to act upon the confession, even if, it is admissible in evidence. Mujibor Rahman Vs The State 14 BLT (HCD)-109 Section-164 Judicial confessional statement of convict appellant was recorded when he was taken on remand by the police for the second time for a period of 3 days. Order dated 25.11.1990 passed by Chief Metropolitan Magistrate demonstrates that the convict-appellant was sick and order for proper medical treatment was recorded. The question now is what this sickness was? Answer must be "sickness was on account of torture carried out and third degree method used by Police upon convict-appellant." Thus, it can be evidently said that Judicial confessional statement was neither true nor voluntary and no conviction can be awarded on the strength of confessional statement which was not free, true and voluntary. Mujibor Rahman Vs The State 14 BLT (HCD)-109 Section-164 Recording a Confessional Statement of a Sick Person The observations of the Magistrate clearly show that though Mamun had difficultly in talking because of his illness at that time, he was in a position to have clear understanding and to make statements. In our view there is no legal bar in recording a confessional statement of a sick person. However the law requires the recording Magistrate to assess the situation as a whole including the makes ability to understand the implication of what he is saying and to decide whether or not to certify the valuntriness and the truth of statement. The State Vs. Shaiokh Abdur Rahman & Ors 14 BLT (HCD)528 Section -164 Retraction of Confession If a confession is proved inculpatory in nature true and voluntary can be sole basis for conviction of the market of the confession, no matter whether it is retracted or not. Gour Chandra Pal Vs. The State 15 BLT (HCD)-36 Section-164 Held: We find from 1st column of the printed forms that the accused was produced before the Magistrate in his office chamber on 7.4.99 at 10 a.m. and he was arrested on 5.4.99. It is evident from the form that there are some other vacant spaces and it was not filled up carefully. It appears from the translation of the printed questions appears to have been made not properly. 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 were 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. Hence the trial court appears to have committed gross illegality in accepting the confessional statement as voluntary and true. Bashar & Ors Vs. the State 15 BLT (HCD)-391 Section-164 Exculpatory in nature It is also evident from the 164 statement of the accused that the confessing accused did not take any active part in the commission of offence. He categorically stated that " ???? ??? ?? ???? ????? ??????? ????” So, it is clear that the confessional statement is exculpatory in nature and as such the same cannot be used against the maker of the same. Bashar & Ors Vs. the State 15 BLT (HCD)-391 Section-164 read with Evidence Act, 1872 Section-25 A confession made to a police officer must be ruled out of evidence even if it was made in the immediate presence of a Magistrate as the terms of section 25 are not qualified or controlled by section 26. Bura Yunus & Ors Vs. The State 15 BLT (HCD)-383 Section 164 For the Purpose of conviction The confessional statement of an accused may be considered against his fellow accused charged with the same crime . In order to base conviction on a non-confessing accused the confession of a confessing accused is required to be corroborated by other corroborative evidence. The State Vs Md.Gaus Meah @ Rana& Ors. 13 BLT (HCD)-136 Section-164 A Confessional soliloquy is a direct piece of evidence. Confessional statement of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the confessing accused himself provided it is voluntary and, also, free. Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak BLT the truth. Such confession are made mostly out of a thirst to speak the truth. A free and voluntary confession deserves highest credit, because it is presumed to flow from highest sense of guilt. If the Court believes that the confession is voluntary and free, there is no legal bar on the Court for ordering conviction. The State Vs. Mehdi Hasan @ Modern & Ors. 13 BLT (HCD) 151. 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. 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. 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—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. 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. 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 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. 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 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(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—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 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—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—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. 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. 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. 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 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. 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. 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—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—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 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 90(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 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 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 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. 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. 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)—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)—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. 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 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. 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—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. 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 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. 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. 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. 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. 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. 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. 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(I) & 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 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. Code of Criminal Procedure, 1898 Section 221 and 222 - Charge should contain the particulars of time, place and manner of occurrence. Section 342 - While examining the accused the trial court must bring the incriminating materials on record to the notice of the accused in order to enable him to explain his position in relation thereto. Penal Code, 1860 Section 394 - Charge must be established by consistent and reliable evidence. In a criminal trial the charge framed should contain specifically the particulars of time, place and manner of occurrence. Again the court must bring to the notice of the accused while being examined under section 342 Cr.P.C, the increminating materials on record. The charge shall have to be proved by consistent and credible evidence. When the mandatory requirements are not complied with, such non-compliance causes prejudice to the accused occasioning failure of justice and as such the conviction and sentence passed therein cannot be sustained in law. Shahid Mia and another Vs. The State and another 13 MLR (2008) (HC) 303. Code of Criminal Procedure, 1898 Section 222(2) - Misjoinder of charges is an illegality not curable under section 537. Incidents of commission of offence failings within a period exceeding one year cannot be joined in a charge and tried together. Such misjoinder of charges is illegal and is not curable under section 537 Cr.P.C. and accordingly the learned judges of the High Court Division set aside the judgment of conviction and sentence and remanded the case for fresh trial in accordance with law. Abul Khair Vs. The State 11 MLR (2006) (HC) 337. Code of Criminal Procedure, 1898 Section 241A - Accused cannot be discharged when the charge prima facie appears to be supported by the materials on record. Section 561A - Order of discharge of accused which appears to be perverse and malafide is liable to be set aside. Accused opposite party who was officer in charge of Shaympur police station is found from the record to have connivance with the principal accused in the commission of the offence of kidnapping the victim boy for ransom and subsequently in his brutal murder in support of which there are sufficient materials including documentary evidence and as such there was no reason to discharge the accused under section 241A CrPC. The accused opposite party unsuccessfully moved earlier the High Court Division for quashment of the proceedings. Thereafter by suppressing the order of the High Court Division the accused Zahangir Alam fraudulently obtained the order of his discharge from the Druto Bichar Tribunal which is illegal, perverse and malafide. The High Court Division in a sumoto rule issued upon a newspaper report set aside the discharge order in exercise of its inherent power under section 561A Cr.P.C. State Vs. Zahangir Alarn 11 MLR (2006) (HC) 103. Criminal Law Amendment Act, 1958 Section 6A Emergency Powers Rules, 2007 Rule 19Ka - Time limit under both the provisions are held directory and not mandatory As there is no consequence provided, in the event of the failure to contuse trial within the time specified, the apex court held the provisions of 339C of the Code of Criminal Procedure, 1898, section 6A of the Criminal Law Amendment Act, 1958 and rule 19Ka of the Emergency Power Rules, 2007 as directory and not mandatory. However the apex court further advised to take disciplinary action against the judge concerned for his willful negligence in not complying with the provisions of the law in appropriate cases. A.H.M. Mustafa Kamal @ Lotus Kamal Vs. Government of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs 14 MLR (2009) (AD) 45. Code of Criminal Procedure, 1898 Section 439 - Right of appeal is a legitimate right of the convicted. It cannot be denied on ground of limitation. In a case where the convict was tried in absentia, the limitation does not operate aginst the criminal appeal as the sentence is counted from the date of his arrest. In that view of the matter we learned judges of the High Court Division held the appeal should have admitted even though it was filed aftetr 5187 days. The legitimate right of appeal should not be denied on ground of imitation. The learned judges of the High Court Division condoned the delay of 5187 days and directed the Sessions Judge, Munshiganj to proceed with the appeal. Mohammadullah Vs. The State 12 MLR (2007) (HC) 207. Code of Criminal Procedure, 1898 Section 403 Provides that, no person shall be tried and convicted twice for the same offence Anti-Corruption Commission Act, 2004. Section 32 (2) does not apply to cases prior to the Act coming into operation. There is no res-judicata in the Criminal jurisdiction except the bar provided under section 403 Cr.P.C. When steps under section 6(5) of the Criminal Law Amendment Act, 1958 were duly taken, there was no legal requirement to obtain sanction any more. Section 32 of the Anti-Corruption Commission Act, 2004 has no manner of application to the cases prior to the Act coming into force. Mostafa Kamal and others Vs. Salahuddin Ahmad and others 14 MLR (2009) (AD) 412. Code of Criminal Procedure, 1898 Section 417 - Unless the order of acquittal suffers from non-consideration of material evidence on record or perversity no interference is warranted. Section 234(1) and 222(1) Charge framed in violation of the mandatory provision of law - defect is not curable under section 537 Cr.P.C. In order to constitute offence of misappropriation under section 409 of the Penal Code and criminal misconduct under section 5(2) of the Act II of 1947, there must be entrustment of the property and misappropriation thereof. When the fundamental characteristics of the offence complained of are not present - no offence is committed. Pariduddin Ahrned (Md.) Vs. Ataharuddin and another 13 MLR (2008) (HC) 186. Code of Criminal Procedure, 1898 Section 417 - Appeal against acquittal Penal Code, 1860 Section 302/34 Appeal against acquittal Government did not prefer appeal against acquittal. The informant preferred this appeal. The victim was murdered in a broad day light. The learned judges of the High Court Division upon scrutiny found sufficient evidence on record which can well warrant conviction of the accused. Accordingly the appeal is allowed and the order of acquittal is set aside and the case is sent back for retrial and disposal. 15 MLR (2010) (HC) 318. Code of Criminal Procedure, 1898 Section 417A, 423 and 439 –Enhancement of sentence without any notice served upon the convict appellants being illegal is set-aside By majority the appeals are allowed thereby holding the enhancement of sentence to 1O years R.I from 3 years R.I and fine to 10 thousand taka from 5 thousand taka without issuing any rule to the convict-appellants as illegal and thus reducing the same to the extent already awarded by the trial court under section 201/34 of the Penal Code. Khondaker Zulu Ban and another Vs. The State 13 MLR (2008) (AD) 302. Code of Criminal Procedure, 1898 Section 439 - Scope of interference with the order of conviction and sentence confirmed in appeal when the same suffers from inherent defect in evidence. Evidence Act, 1872 Section 114(g) - Non-examination of material witness and the adverse presumption against the genuineness of the prosecution case Narcotics Control Act, 1990. Section 19(3) - Offence of possession of ganja plants held not proved when the prosecution led no evidence as to the land where from the ganja plants recovered belongs to the convict-petitioner. Convict-petitioner was convicted for the offence under section 19(3) of the Narcotics Control Act, 1990 and the conviction and sentence were also affirmed by the Sessions Judge in appeal. The learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any evidence on record showing that the land wherefrom the ganja plants were recovered actually belongs to the convict-petitioner. Shamsher Ali (Md.) Vs. The State 12 MLR (2007) (HC) 38. Code of Criminal Procedure, 1898 Section 439 - Charge u/s 147, 148, 302/34 of the Penal Code framed on the materials on record held perfectly justified - Post mortem examination report is only a piece of evidence. When there are other sufficient evidence including ocular evidence the accused cannot be discharged only because the postmortem report does not support the death of the victim as suicidal in nature. The learned judges & the High Court Division found wrong with the impugned orderandr thus discharged the rule. Azad Hossain Sarder alias Bhojey others Vs. The State 15 MLR (2010) HCD 416. Code of Criminal Procedure, 1898 Section 439, 561A and 417(2) - Applicability to order of acquittal passed in appeal An application u/s 561A Cr.P.C. can be maintainable against conviction and sentence only when not based on any legal evidence. But when the same is based on some legal evidence such application is not maintainable. Against the order of acquittal passed by the Sessions Judge having the conviction and sentence based on no legal evidence, the petitioner at best could move the High Court Division under section 439 Cr.P.C. The apex court held the High Court Division was perfectly justified in discharging the Rule. Razia Khatun Vs. Idris Ali and another 12 MLR (2007) (AD) 22. Code of Criminal Procedure, 1898 Section 374 - Commutation of sentence of death into imprisonment for life on ground of certain mitigating factor. In this reference case the learned judges of the High Court Division held the conviction perfectly justified but commuted the sentence of death into imprisonment for life in view of the occurrence taking place following an altercation and the convict-appellant being at the age of 25 years. State Vs. Adam Khan 14 MLR (2009) (HC) 44. Code of Criminal Procedure, 1898 Section 476 and 195(1) (c) - Complaint by a private person with regard to forged document and use thereof in mutation proceeding is permissible in law. State Acquisition and Tenancy Act, 1950 Section 143 and 144 - These two sections operate in different perspectives so far whether revenue officer is a court or not, is concerned. Revenue officer while acting as Settlement officer in preparing the record of rights under section 144 of the State Acquisition and Tenancy Act, 1950 is held to be a revenue court. But the apex court held the revenue officer while effecting mutation under section 143 of the Act 1950, not a revenue court and as such private complaint regarding forged document and its use in the mutation proceeding is not barred under section 476 and 195(1)(c) of the Code of Criminal Procedure, 1898. Sahera Khatun (Most.) Vs. Abdur Rahim Sk and another 12 MLR (2007) (AD) 377. Code of Criminal Procedure, 1898 Section 476 and 195(1)(c) - Complaint to be made in respect forgery of document produced and given in evidence in relation to a proceedings before a court. The petitioner obtained an ex parte order of pre-emption on the basis of a forged kabala deed. In a subsequent suit the said kabala was challenged in which the copy of the order of pre-emption was produced and given in evidence. The kabala was found a forged document and the trial judge sent the complaint as required under section 476 and 195(1)(c) Cr.P.C to the Magistrate which the learned judges of the High Court Division of the Supreme Court held was perfectly justified in view of the fact the pre-emption order became an integral part of the forged kabala deed. Ruhul Amin Vs. The State and another 13 MLR (2008) (HC) 241. Code of Criminal Procedure, 1898 Section 491 - Victim who is an adult and is not an accused in any proceedings cannot be detained in custody whether judicial or otherwise. Law does not approve of detaining the victim who is an adult and is not an accused in any proceedings. The learned judge of the High Court Division directed the release of the victim forthwith. Jobbar Mia (Md.) on behalf of Fatema Farhana @ Aruna Roy Vs. The State represented by theDeputy Commissioner, Manikgonj 11 MLR (2006) (HC) 404. Code of Criminal Procedure, 1898 Section 494 - Withdrawal from prosecution To give consent to the withdrawal from prosecution is the discretion of the court where the proceedings are pending. Such discretion must be exercised judiciously and not mechanically. While according consent to the withdrawal, the court has to give its reason warranting such withdrawal. Apart from this it is well settled that a fugitive cannot get any protection of law. There is no element on record to show that the case was politically motivated. Having regard to the position of law the learned judges of the High Court Division set aside the impugned order and directed the tribunal below to proceed with the case in accordance with law. Ayrin Akhter Lypi Vs. Bahadur Khan and another 15 MLR (2010) (HC) 139. Code of Criminal Procedure, 1898 Section 498 - Anticipatory bail can be granted very sparingly in case of exceptional nature. Emergency Powers Rules, 2007 - Rule 19(gha) Ousts the jurisdiction of all courts including the Supreme Court to grant bail. When not specifically challenged the High Court Division cannot embark upon deciding the constitutionality of the Rule 19(gha) of the Emergency Powers Rules, 2007 while deciding the matter of granting bail. The Appellate Division held the jurisdiction of the courts including the Supreme Court has been ousted by Rule 19(gha) and as such set aside the impugned order passed by the High Court Division. The State Vs. Moyezuddin Sikder and others 13 MLR (2008) (AD) 208. Code of Criminal Procedure, 1898 Section 498 - Apex court discouraged grant of anticipatory bail in a case pending where the accused are F.I.R named. In the case of murder where the accused are named in the F.I.R and a regular case is pending the Appellate Division discouraged the grant of anticipatory bail. State Vs. A. Hoque alias Abdul Haque and others 15 MLR (2010) (AD) 151. Code of Criminal Procedure, 1898 Section 498 - Grant of anticipatory bail is an exception to the general rule. When there are direct allegations of commission of murder and the accused is fugitive from the process of justice, he cannot be granted anticipatory bail. When fugitive accused appears before the court seeking anticipatory bail, the court should not direct him to surrender before the court concerned and direct the police not to arrest him in the meantime. Such practice is not approved by law. When bail is refused the court must handover the accused to the police. State Vs. Zakaria Pintu alias Md.Zakaria Pintu and others 15 MLR (2010) (AD) 445. Code of Criminal Procedure, 1898 Section 498 - Anticipatory bail granted when the petitioner has no forum to surrender. In a case of murder where the petitioner is not named as an accused in the F.I.R. and during investigation he is being chased by the police and when he has no forum to surrender and seek for bail the High Court Division in the facts and circumstances granted anticipatory bail for limited period till submission of police report. Shawkat Hossain Vs. The State 11 MLR (2006) (HC) 43. Code of Criminal Procedure, 1898 Section 498 - Granting bail when completion of investigation is inordinately delayed. In a case of murder when the investigation was not complete for a long time and the accused petitioners were in custody for more than 8 months, the learned judges of the High Court Division in exercise of their discretion under section 498 Cr.P.C granted bail to the accused petitioners. Hanfa (Md.) and another Vs. The State 13 MLR (2008) (HC) 66 Code of Criminal Procedure, 1898 Section 498 - Bail granted to the accused cannot be cancelled on vague and uncertain allegations. Once the accused is granted bail he has the indefeasible right to enjoy the privilege thereof. The court cannot cancel his bail on vague and unspecific allegation of misusing the privilege of bail. The learned judges of the High Court Division on the above findings made the rule absolute and rejected the application for cancellation of bail as the same does not contain any specific allegation. Abdul Alim @ Chutta and another Vs. The State 15 MLR (2010) (HC) 476. 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. 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 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. 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(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. 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. 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 498—Order for conditional bail is illegal and not proper. AHM Siddique vs State 45 DLR (AD) 8. 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 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. 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. 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. 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. 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. 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. 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—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 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―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 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 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. 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. Section 35A - Period of custody before trial to be deducted from the term of the sentence Section 164 - Confessional statement of an accused cannot be used against her co-accused. Law is well settled that the period of custody before trial shall be deducted from the period of sentence as provided under section 35A of the Code of Criminal Procedure, 1898. Confessional statement of one accused cannot be used against other co-accused. Again the evidence of the witnesses who are natural and competent cannot be discarded by reason of their being related to each other. Mohammad Ali alias Shanu Vs. The State 13 MLR (2008) (AD) 121 Code of Criminal Procedure, 1898 Section 35A - Provisions shall be equally applicable to the convicts tried under the Special Powers Act, 1974. Cardinal Principle of criminal justice system is that until found guilty, an accused shall be presumed to be innocent. Suspicions, however strong is no substitute for evidence. In case of conflict between the medical evidence and ocular evidence as to the injury of the victim, the medical evidence shall prevail. The learned judge of the High Court Division upon interpretation of the applicability of section 35A of Cr. P.C. in reference to the decisions of different jurisdictions held that the convict appellant tried and convicted for an offence under section 3 of the Explosive Substance Act, 1908 by the Special Tribunal under the Special Powers Act, 1974 is equally entitled to the deduction of the period of custody from the period of his sentence. Shadhu Miah and others Vs. The State 15 MLR (2006) (HC) 130. Code of Criminal Procedure, 1898 Section 94(1) - Bank accounts cannot be seized. Production of documents relating to Bank account can be ordered only in connection with investigation of certain offence. The proviso to sub-section (1) of section 94 of the Code of Criminal Procedure, 1898 put the powers of the Sessions judge under certain restrictions. Session judge cannot accord permission to seize the Bank accounts. Permission for production of documents relating to Bank accounts may be accorded only in connection with the investigation of certain offences. The learned judges of the High Court Division held the mere framing of Rule 20(1)(ka) of the durniti daman commision in the absence of any such provision in the Anti-Corruption Commission Act, 2004 cannot negate the provision of section 94(1) of the Cr.P.C and as such set aside the impugned order of the Sessions judge. Tofail Ahmed Vs. Chairman, Anti- Corruption Commission and others 15 MLR (2010) (HC) 177. Code of Criminal Procedure, 1898 Section 145 - Proceedings drawn on apprehension of breach of peace and appointment of receiver. Proceedings drawn on apprehension of breach of peace over the possession of immovable property and the appointment of Receiver by the Magistrate are held by the learned judges of the High Court Division perfectly justified. Once the proceedings is drawn it must be ended by determination of the possession of the party after taking evidence. Possession taken over by one party during pendency of the proceedings by dispossession of the other party is no legal possession. The learned judges further held the Session judge was wrong while setting aside the appointment of the receiver and directing him to hand over possession of the property to the second party during pendency of the proceedings. Alauddin (Md.) Vs. The State and others 12 MLR (2007) (HC) 64. Code of Criminal Procedure, 1898 Sections 145 and 146 - Powers of the Magistrate to draw proceedings to prevent breach of peace relating to possession of immovable property and appoint receiver. The existence of apprehension of breach of peace relating to possession of disputed immovable property vests the jurisdiction in the Magistrate 1st class to draw up proceedings in order to prevent breach of peace. Such power is limited. He cannot decide title to the property which is the absolute jurisdiction of the civil court. In the event the Magistrate finds himself unable to decide the possession of either party to the proceedings he can appoint a receiver under section 146 Cr.P.C. But when a party is in possession of the said property on the date of drawing up proceedings or within 60 days preceding thereof and civil suits are pending the Magistrate cannot appoint receiver. The learned judges of the High Court Division upheld the impugned decision passed by the Additional Sessions Judge in reversing the order of appointment of receiver. Abul Kniam (Mohd.) Vs. State and others 15 MLR (2010)(HC) 126. Code of Criminal Procedure, 1898 Section 154 - There is no limitation litigate criminal proceedings- Delay not fatal when satisfactorily explained. Section 164 - Confessional statement when appears to be true and voluntary - valid piece of evidence which can the basis of conviction. Section 342 - Incriminating materials in record must be brought to the notice of the accused. Penal Code, 1860 Sections 302 and 304 - Absence of intention to cause the death brings the offence of culpable homicide not amounting to murder within the ambit of section 304 of the Penal Code. State Vs. Jahedul Islam @ Moulvi Babu 14 MLR (2009) (AD) 258. Code of Criminal Procedure, 1898 Section 154 - First Information Report (FIR) is an important piece of evidence as it gives out the prosecution story first in point of time and it can be used to check subsequent embellishment. When some new story is introduced during trial not mentioned in the FIR such introduction of new facts is embellishment of the prosecution case which makes the prosecution case doubtful. Aminul Islam and others Vs. The State 12 MLR (2007) (HC) 21. Code of Criminal Procedure, 1898 Section 154 - Delay in lodging FIR - when satisfactorily explained is not fatal for the prosecution. Section 164 - Confessional statement true and voluntary can form the sole basis of conviction. Subsequent retraction does not take away the evidentiary value of confessional statement. Evidence Act, 1872 Section 32 - Dying declaration as to the cause of death of the deceased may form the basis of conviction -The quality but not the quantity of evidence which matters. Circumstantial evidence unerringly pointing at the guilt of the accused can safely form the basis of conviction. Similarly as in the case of husband of a Wife killing case, the wife has also equally the same liability to explain as to how her husband met his death when they were residing in the same house at the time of the occurrence. Penal Code, 1860 Section 302 - In case of murder with extreme brutality death is the proper sentence. Where there is mitigating circumstance the alternative sentence of imprisonment for life is the appropriate sentence. Sentence must be proportionate to the nature and gravity of the offence. State Vs. Anjuara Khatun 12 MLR (2007) (HC) 214. Code of Criminal Procedure, 1898 Section 154 - Delay in lodging F.I.R when not satisfactorily explained casts adverse reflection on the prosecution case. Section 164 - Confessional statement of an accused is no evidence against the other co-accused. Confession recorded of an accused produced from police custody indicates its involuntariness. Burden of proof of charge beyond reasonable doubt lies upon the prosecution. Evidence of witness declared hostile cannot always be discarded. Abscondence by itself is no proof of the guilt of the accused. Sepcial Powers Act, 1974 Section 25B - When the offence alleged does not fall within the definition of, smuggling the accused is entitled to acquittal Smuggling when not done directly by the accused No charge lies against him. Mujibar Rahrnan Vs. The State 13 MLR (2008) (HC) 88. Code of Criminal Procedure, 1898 Section 161 - The statement/evidence of witness examined by the Investigating officer at the belated stage need be thrown out of consideration Section 174 - Investigating officer has to ascertain the cause of death of the deceased - Inquest report of the dead body as to the injuries is admissible in evidence. In case of conflict between the Inquest Report and the post mortem report, the post mortem report shall prevail and the benefit of doubt arising therefrom shall go in favour of the accused. Code of Criminal Procedure, 1898 Section 162 - Statement in the inquest report as to the existence of injury and the cause of death by itself is not evidence. Medical evidence shall prevail in the event of conflict between inquest report and the postmortem examination report. Penal Code, 1860 Section 302/34 –Several injuries inflicted even though on the vital part of the body of the deseased which are likely to cause death and when in consequence thereof actually occurred, certainly constitue offence punishable under section 302 of the Penal Code and not section 304. Syed Nurul Azim Babar Vs the State 14 MLR (AD) 364. Code of Criminal Procedure, 1898 Section 164 - Confessional statement of an accused cannot be used against the other co-accused without corroboration by independent evidence. Law is well settled that conviction of an accused cannot be solely based on the confessional statement of other co accused without corroboration by independent evidence. The apex court strongly disapproved the practice of convicting an accused solely on the basis of confessional statement of other co accused. Majid Sheikh alias Majid and others Vs. The State 11 MLR (2006) (AD) 270. Code of Criminal Procedure, 1898 Section 164 - Confessional statement of an accused cannot be relied upon without examining the recording Magistrate. Penal Code, 1860 Section 398 - Charge held not proved beyond doubt when the evidences are sharply contradictory and material witnesses are withheld. In the instant case the Investigating officer and the Magistrate who recorded the confessional statement of the convict appellant have not been examined by the prosecution without any satisfactory explanation. On the contrary the evidences of the witnesses so far examined are full of contradictions. In such circumstance the learned judges of the High Court Division held the charge not proved beyond reasonable doubt and acquitted the convict-appellants. Latif alias Md. Latif Miah and Rabiuzzal Hossain Vs. The State 13 MLR (2008) (HC) 410. Code of Criminal Procedure, 1898 Section 164 - Confessional statement of accused recorded after being produced from prolonged police custody held inadmissible as not true and voluntary. Penal Code, 1860 Section 396 - Offence of dacoity - Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of the accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266. Code of Criminal Procedure, 1898 Section 164, 364 - Confessional statement of accused can form the basis of conviction of the confessing accused. Penal Code, 1860 Section 302/34 - Charge of murder proved by circumstantial and other corroborative evidence including confessional statement - Sentence of death is held to be appropriate. The charge of cold blooded murder of her daughter with the participation of the co-convict in a gruesome manner appears to have been proved beyond doubt by strong circumstantial evidence and confessional statement of the condemned prisoner corroborated by other independent evidence and there being no mitigating factor the High Court Division having been in complete agreement with the trial court confirmed the death sentence under section 374 of the Code of Criminal Procedure. The State Vs. Rokeya Begum and another 11 MLR (2006) (HC) 63. Code of Criminal Procedure, 1898 Section 173 - Final report and the Naraji petition Neither the High Court Division nor the Sessions judge in exercise of revisional jurisdiction can direct the Magistrate to take cognizance when the police after investigation submitted final report. The Magistrate may be directed to hold further enquiry into the complaint in accordance with law. However the observation of the Sessions judge or the High Court Division shall have no bearing on the merit of the case before the Magistrate. Taher and others Vs. Md. Abdul Kuddus and others 14 MLR (2009) (AD) 55. Code of Criminal Procedure, 1898 Section 173(3) - Magistrate can direct further investigation after submission of police report under section 173(1) - Filing of Narajee petition does not preclude such further investigation. Sub-Section (3B) of section 173 of the Code of Criminal Procedure, 1898 provides for further investigation into an offence even after the submission of charge sheet or final report by the police under sub-section (1) of section 173. Filing of Narajee petition also does not preclude such further investigation. Kamaluddin Vs. The State 11 MLR (2006) (AD) 78. Code of Criminal Procedure, 1898 Section 173(3B) - Further investigation can be made on discovery of new or additional evidence - There is no legal bar on further investigation and submission of supplementary charge-sheet upon collection of new and additional evidence as provided under section 173(3B) after submission of charge-sheet or report under sectionl73(1) of the Code of Criminal Procedure. Tareq Shamsul Khan @ Himu and others Vs. The State 12 MLR (2007) (AD) 130. Code of Criminal Procedure, 1898 Section 195(1)(c) - Complaint in respect of forged document used in judicial proceedings to be lodged by the court concerned. Section 561A - Quashment of proceedings when not initiated in accordance with law. As provided under section 195(1)(c) proceedings in respect of document forged and used in connection with any judicial proceedings shall have to be initiated on the complaint of the court concerned. Proceedings initiated on direct private complaint is barred and as such the proceedings started on such complaint being abuse of the process of the court has been quashed by the High Court Division, which the apex court held to be perfectly justified. Kazi Farhad Hossain(Munna) Vs. Md. Golam Must afa Sarwar and others 12 MLR (2007) (AD) 127. Code of Criminal Procedure, 1898 Section 195(1)(c) and 476 - Power of appellate court to lodge complaint against forgery of documents used in connection with judicial proceedings. As provided under section 107 of the Code of Civil Procedure, 1908 the court of appeal has all the powers of the trial court. It is competent to do what the trial court failed to do. It can make complaint under section 195(1)(c) read with section 476 of the Code of Criminal Procedure in respect of forgery of document used in the judicial proceedings before it. Messers N.F.M Universal Estate Ltd. represented by its Managing Director Abdul Awal Minto Vs. A.N.M Obaidul Islam being dead his heirs Guishan Begum and others 13 MLR (2008) (AD) 52. Code of Criminal Procedure, 1898 Section 195(1)(c) - Complaint as to forgery of document used in proceedings before Settlement officer When the original of the alleged forged deed is not produced in connection with the proceedings before the Settlement officer there was no scope of holding any enquiry as to the alleged forgery. No enquiry can be held on the basis of copy of the deed and as such the Settlement officer was not competent to lodge the complaint. Therefore the apex court did not find any illegality with the proceedings started on private complaint. Abdus Salam alias Md. Abdus Salam Vs. Samala Bibi and others 13 MLR (2008) (AD) 27. Code of Criminal Procedure, 1898 Section 195(1)(c) - Initiation of criminal prosecution by private complaint in respect of forged document Law is well settled that when the original forged document is used in any judicial proceedings, the court concerned shall have to send the complaint in respect of such forged document to the Magistrate of competent jurisdiction and in such a case a private complaint is barred under section 195(1)(c) of the Code of Criminal Procedure. But in case where photocopy is used in the judicial proceedings criminal prosecution can well be initiated on private complaint and pendency of civil suit will not be a bar. State Vs. Sailendra Chandra Borman 14 MLR (2009) (AD) 52. Code of Criminal Procedure, 1898 Section 200 - Examination of the complainant is not always necessary when it does not cause any prejudice - Omission to examine is an irregularity curable under section 537 Cr.P.C. In the instant case cognizance was taken by the Magistrate on the basis of judicial enquiry report during which the complainant alongwith other witness were examined. The apex court held there was sufficient compliance with the requirement of law and as such there was no illegality in taking cognizance and the irregularity if any, was curable under section 537 of the Code of Criminal Procedure and accordingly setaside the impugned judgment and order passed by the High Court Division and directed the Metropolitan Sessions Judge to proceed with the case. Ahammad Ismail Vs. Md. Rafiqul Islam and others 12 MLR (2007) (AD) 236. Code of Criminal Procedure, 1898 Section 200 - Examination of complainant Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 17(2) - Tribunal sending the complaint to the police station for investigation without examining the complainant - Nothing wrong is there. The tribunal sent the complaint to the police station for investigation without examining the complainant under section 200 of Cr.P.C. The High Court Division held there was nothing wrong and discharged the rule which the apex court found perfectly justified. Afroza Jesmin Vs. the State 12 MLR (2007) (AD) 303. Code of Criminal Procedure, 1898 Section 200 - Examination of the complainant the purpose is to ascertain the prima facie truth or otherwise of the allegations by intelligent exercise of judicial mind. The purpose of examination of the complainant under section 200 of the Code of Criminal Procedure, 1898 is to ascertain the prima facie truth or otherwise of the allegations. Such examination is not an idle formality. Alhaj Abul Kashem Vs. The State 11 MLR (2006) (HC) 73. Addition of Parties A private party or a prosecutor cannot be rd as of right in a criminal appeal BLT the court may in its discretion hear the party in port of or opposition to the order/ judgment under challenge in appeal. Tayazuddin & Anr Vs. The State & Ors. 10 BLT (HCD)-52 Added as party in criminal proceeding The Informant as a matter of right cannot be heard and added as party in criminal proceeding though initiated at the instance of Informant BLT the Court can in its discretion hear the party in support or in opposition of the criminal proceeding before a court of law A. Kader (Mobail Kader) Vs. The State & Ors. 10 BLT (HCD)-219 Substitution of the legal representative of a deceased appellant in a criminal appeal Held: Son of the deceased appellant has an interest in the appeal and may be allowed to prosecute the appeal though there is no express provision in any law permitting the substitution of the legal representatives of a deceased appellant in a criminal appeal. S. Talibur Rahman Vs. The State 10 BLT (HCD)387 Question arose as to how the trial of complaint case and police case, arising out of the same incident 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. During that case the Trial Judge may call the witnesses mentioned in the police case, if they are not already examined on behalf of the complaint, as court witnesses under Section 540-A of the Code of Criminal Procedure, so that they can be cross examined by both the parties. If the trial ended in conviction in the Complaint Case, the Public Procedure 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 in so far 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. Motaleb Mondal Vs. The State & Ors 14 BLT (HCD) 284 Whether the dying declaration is a subsequent embellishment The fact of making dying declaration by the deceased disclosing the names of the appellants as his assailants as stated by P.Ws.2, 3, 4, 8 and 9 is not credible, as such fact did not find place in the First Information Report. P.W.I also in his deposition did not support the same through he was present by the side of his deceased son all through and shifted him to the hospital. It is well settled that through First Information Report is not substantive evidence, as the earliest recorded version of the prosecution case it has such importance. Had the deceased made any dying declaration as said by P.Ws.2, 3, 4, 8 and 9 such fact would find place in the First Information Report. Thus we find that the story of the dying declaration is a subsequent embellishment. Jabbar & Ors. Vs. The State 14 BLT (HCD) 166 Section-4(1) All proceeding under the Code for collection of evidence are "Investigation" — Investigation is not the solitary area for Judicial scrutiny in criminal trial and Criminal trial cannot be allowed to depend solely upon the probity of Investigation. It is well neigh settled that even if the Investigation is illegal or suspicious evidence must be scrutinized independently of the import of the Investigation. Otherwise, the Criminal Trial will plummet to the level of investigating officers ruling the roost. Court must have predominance and pre-eminence in Criminal Trials over action taken by Investigation Officers. Criminal Justice cannot be made a casualty for wrongs and defects committed by Investigating Officers in the case. If Court is convinced that testimony of a witness to occurrence is true, it is free to act on it albeit the Investigating Officers suspicious role in the case. If offenders are acquitted only on account of flaws or defects in Investigation, the cause of criminal justice becomes the victim, Criminal Justice is always to be salvaged despite defects in Investigation. The State Vs. Ershad Ali Sikder & Anr. 11 BLT (HCD)-102 Section-4 (1) (q) "Place"- a particular case may also be tried in a place other than the normal Place when the sitting of the Court of Sessions takes place. Sayeed Farook Rahman Vs The Sessions Judge. 5 BLT (AD)-225 Sections -5(2), 29(2) The inquiry should be held according to the provisions of the Code where the enactment which creates the offence indicates no special forum or procedure. Section 5 of the Code provides for the procedure to be followed in every inquiry or trial in regard to the offence under the Penal Code as well as under the other laws. In respect of other laws, the procedure in the Code are subject to the enactments which regulates the procedure in such cases. Hayder Miah Vs. Labour Court & Ors. 10 BLT (HCD)-202 Section-9 (2) Section 9(2) authorizes the Government to direct at what place or places the Court of Sessions shall hold its sitting-if there is a Special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Farook Rahman Vs The Sessions 5 BLT (AD)-225 Section -10 read with Special Powers Act, 1974, Section -3(2) Prejudicial activates in Metropolitan Areas A Distric Magistrate or Additional District Magistrate has no power to make orders of detention in respect of a person who has acted or is acting or is about to act in a pejudicial manner within a Metropolitan. Anowar Hossion & Ors Vs. The State & 11 BLT (HCD)-392 Section-35A The Tibunal ordered that the period during the accused remained in custody conviction should be deducted from the sentence awarded. Such deduction can zed in view of provision of section the Code of Criminal Procedure BLT to that section provides that such deduction cannot be allowed when minimum 'sentence is provided in law. Habibur Rahman Vs. The State 8 BLT (HCD)-119 Section-35A Convict appellant sentenced to suffer imprisonment for 10 years -The appellant was in custody from the his apprehension on 4.5.1995 till the date of delivery of judgment comes to 3 years 6 months and 26 further appears that he was in jail after delivery of judgment before he was enlarged on bail by this court on 27.4.2005 which comes to 6 years 4 months and 22 days and in total he was in custody for 9 years 11 months 22 days. Though the convict appellant was enlarged on bail on 27.4.2005 BLT the bail order was sent to the office of the Deputy Commissioner, Lakshmipur on 7.5.2005as is evident from the margin of the order sheet dated 27.4.2005. The convict appellant was not released from jail before receipt of the bail order which in fact was not received earlier than on 7.5.2005 and as such the convict appellant served out sentence of more than 10 years on 7.5.2005. In view of the fact and circumstances of the case we consider it to be a fit case to invoke Section 35A of the Code of Criminal Procedure for the purpose of counting the period of sentence already undergone by the convict appellant before and after delivery of judgment. Abdul Gani Ganya Vs. The State 15 BLT (HCD)-47 Section -35A The appellants and the petitioner were apprehended on the spot on 16.3.1999. They had undergone considerable period in custody proceeding to their conviction and sentence. Some of them have been enlarged on bail subsequently. On consideration of the above, we are of the view that ends of justice will be met if the accused persons are given the benefit of section 35A of the Code of Criminal procedure. Ful Miah & Ors Vs. The State 15 BLT (HCD)-322 Section- 35A Whether concessionary provision of punishment as provided in section 35A of the Code is quite inconsistent with the scheme of the Special Powers Act Held: The Provision of Section 35A with Sub-Section (1) and (2) has been cast in mandatory form by amending the Code to effect deduction of imprisonment in cases where convicts may have been in custody by obliterating and substituting the earlier provision of Section 35A where deduction of the period was left to the discretion of the Court -the appellant in this case who was arrested by the police on 13.12.2001 and was in jail custody until he was convicted and sentenced by the Tribunal by pronouncement of judgment and order of conviction on 25.5.2004 and as such is entitled to the deduction of the period from the sentence of imprisonment. Hazarat Ali Vs. The State 15 BLT (HCD)-466 Section-51 Whenever a person is arrested by a police officer under a warrant, the officer making the arrest may search such person and place in safe custody all articles other than necessary wearing- apparel found upon him. Sukkur Ali Kha Vs. The State 6BLT (HCD)-98 Section-54 read with Special Powers Act, 1974 Section 3(1) An arrest of a person under section 54 of the Code can only be made by a police officer under the circumstances specified therein without an order of a Magistrate. Whereas, an order of detention is made if the authority is 'satisfied' that the detent had acted or is acting or is about to act prejudicial activities within the meaning of "Prejudicial-Act" under the Special Powers Act. This 'satisfaction' as referred to is that of the authority and its satisfaction cannot be replaced by that of a police officer. This 'satisfaction' of the authority is subject to judicial review and this Court can look into this subjective satisfaction of the authority objectively. In respect of these detents, the 15 Years Digest authority made the orders of detention, the moment the police officer made proposal for detention after arrest under section 54 of the Code. This shows that the report of the police officer replaced the "satisfaction" of the authority in making an order on detention. Therefore, it is beyond the schame of the detention law that an order of detention can be made in respect of a person on the basis of a report of the police] officered after he was arrested under section 54 of the Code. Md. Saifuzzaman Vs. The State & Ors 11 BLT (HCD)-410 Section-54 Binding guidelines (i) The Police officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest such officer shall obtain the signature of t arrestee with the date and time of arrest in the said memorandum. (ii) The police officer who arrested the person must intimate to a nearest relative of the arrestee and in the absence of the relative, to fl friend to be suggested by the arrestee, as so:? as practicable BLT not later than 6(Six) hours of such arrest notifying the time and place of arrest and the place of custody. (iii) An entry must be made in the diary at to the the ground of arrest and name of the person who informed the police to arrest the person or made the complaint along with in address and shall also disclose the name and particulars of the relative or the friend as the case may be, to whom information given about the arrest and the particulars of police officer in whose custody the arrestee is staying. Md. Saifuzzaman Vs. The State & Ors. 11 BLT (HCD)-410 Sections-68, 75 A warrant of arrest is an order addressed to a person usually to a police officer to do any particular act, such as, the apprehending and production of an offender or a search for a thing. A summons on the other hand, is always addressed to the person who is required either to attend or to produce a document or thing. Therefore, it will appear that this power of issuance of summons or a warrant is neither an ordinary nor an additional power of a Magistrate under Section 36 and 37 of the Code of Criminal procedure. We are therefore of the view that no vesting of power is necessary upon any Tribunal or a Court for issuance of any process as per provision either under Section 68 or of Section 75. Hayder Miah Vs. Labour Court & Ors. 10 BLT (HCD)-202 Section-94(1) No such power is vested in law to the learned Sessions Judge to allow any prayer for seizure of banking documents for the purpose of inspection. So, while no proceeding is either pending in any Court or before any police officer for investigation of any offence, the order directing for seizure of document is without jurisdiction. Islami Bank Bangladesh Ltd. Vs. Dist. Anti-Corruption Office & Anr. 11 BLT (HCD)-246 Section-99A Impugned under has been passed under Section-99A of the Code— we are led to the opinion that no prior notice is necessary for issuance of the impugned order—if any news paper or document contains any matter publication of which is punishable under section 295A of the Penal Code, Government is authorized to declare the said publication to be forfeited to the Government. Junaid K. Doja Vs. The State & Ors 9 BLT (HCD)-293 Section-99A(1)(c) To forfeit a publication it is enough if it "appears to the Government" that a certain publication contains any matter as is referred to in sub-section (1) of section 99A. The Government is only required to state by notification in the official Gazette the grounds of its opinion, not its satisfaction or formation of opinion. Sadaruddin Ahmed Chisty Vs. Bangladesh & Ors 5 BLT (AD)-199 Section-103 The search of a place and seizure of thing by the police must be conducted in the presence of two or more respectable inhabitants of the locality. Sukkur Ali Kha Vs. The State 8 BLT (HCD)-22 Section-103 Search and seizure In the context of the realities obtaining in our society in the wake of continuous deterioration of the law and order situation, it is almost impossible now-a-days to get any independent local witness to support the prosecution case involving offences under the Arms Act or of or of smuggling. In almost all such cases the local seizure list witnesses come to the witness box to state that they did not see the recovery of the incriminating articles and that they put their signatures /LTIs in blank papers for obliging the police officers. In such circumstances, the Court should not take too rigid a view regarding the provisions of Section 103 of the code in the absence of any special reasons. The court is competent to convict the accused relying on their testimony. Kashem Vs. The State 9 BLT (HCD)-469 Section-103 Rules Regulating Search In the context of realities of the society very few local witnesses are available to depose against their powerful neighbours or habitual miscreants. In almost all cases they come to the court to say that they signed blank papers on the asking of the police and disown their presence at the time recovery of incriminating articles. In such circumstances, absence of evidence from local witness should not be blown too far. There is no warrant of law that evidence of the members of the law enforcing agencies must have corroboration from other sources. Billal Miah Vs. The State 8 BLT (HCD)-352 Section -103 The compliance of section 103 Cr. P.C. was not necessary in the present case as we find that the arms and ammunition were recovered from the accused appellants in a sequence when they tried to hide the arms and ammunition hurriedly beneath the bed sheet and tried to flee away and not in a sequence for search of the house. Md. Asadul Hossain Vs. The State 14 BLT (HCD)141 Section-103(2) Read with 103 (1) The requirements of section 103 (2) read with 103(1) are that the entire search from the beginning to the end must be conducted in presence of two respectable local inhabitants and the requirements are not fulfilled if the search and the seizure have taken place either preceding the arrival of the local inhabitants or takes place after their departure from the place of search- any search and seizure without strictly complying the provisions must be deemed to be illegal and must be left out of consideration in a criminal trial. Habibur Rahman Vs The State 3 BLT (HCD)-6 Sections-107,117 & 145 Security for keeping the peace and order to give security Whenever there is a dispute relating to possession of any immovable property, the proper course for the Magistrate is to take action under Section 145 of the Code of Criminal Procedure for deciding the factor of possession of the contending parties in the disputed property once for all on taking evidence. BLT under special circumstances the Magistrate is competent to take action under Section 107 and 117 of the Code where the dispute if he satisfies if there is imminent apprehension of breach of the peace which demands an emergent action for keeping the peace. When in a case there is an apprehension of breach of the peace over and ancestral immovable property arising out of ancestral both the parties it is patently unjust and illegal to ask one of the parties to furnish a bond of good behaviour giving an undue advantage over him to the other party. Azhar Rahman & Ors. Vs. The State 8 BLT (HCD)-272 Section-145 If a person is rightfully in possession of his land, his possession should be protected and those who want to commit breach of the peace should be prevented and dealt with by the law enforcing agency. The order of the Deputy Commissioner does not appear to be an order which can be termed as one under Section 145 of the Code of Criminal Procedure. Banamali Pal Vs. Md. Nazrul Islam & Ors 5 BLT (AD)-113 Section-145 The impugned proceeding under Section 145 Cr. P.C. was the result of a machination of the second party-respondents that they were falsely shown as first party to the proceeding in the police report, that they are in possession of the disputed land from the time of their ancestors having got their dwelling houses thereon, that there is civil litigation between them which is pending and that the receiver was appointed by the learned Magistrate without making an order of attachment of the disputed land as contended by the Advocate-on-Record for the petitioners- Held: The nitial order drawing up the proceeding under section 145 Cr. P.C. and appointing a receiver for the disputed land was passed by the learned Magistrate on 15.10.1985 i.e. more than 10 years before- The petitioners will get an opportunity to submit before the learned Magistrate whatever they have got to say with regard to their alleged possession in the disputed land and the alleged fraud said to have been committed by the second party in brining about the proceeding in question. Shahidur Rahman & Ors. Vs. Muhammad Ali 4 BLT (AD)-125 Section-145 The Civil Court having already passed an order regulating the possession in respect of "*~e disputed property, the Criminal Court ;t its authority under Section 145 Cr.P.C. to deal with the same subject matter of the civil suit as contended by the learned Advocate for the petitioner-Held: The learned judges on consideration of the facts and circumstances of the case appear to have taken the correct view that the order of attachment of the disputed property and the appointment of receiver dated 22.4.91had been passed by the Magistrate under Section 145 Cr. P. C. which were upheld by the High Court Division on 22.1.96 in Criminal Revision No. 783 of 1991 and that the learned District Judge passed an order for maintaining status quo long after the order 12 had been passed by the Magistrate on 22.4.91. The ' concerned Magistrate therefore, did not commit any illegality in rejecting the petitioner's prayer for vacating the direction given on 6.8.97 for handing over the charge of the property in question to the receivers. It does not appear that the impugned judgment of the High Court Division suffers from any illegality. Shebail Mohanta Sree Kader Nath Achari Vs. Khetesh Chandra Bhattacharjee & Ors 7 BLT (AD)-216 Section-145 Attachment- Appointment of receiver It appears that the revisional Court below found that there was an apprehension of breach of peace and neither party could adduce cogent and reliable evidence to prove their respective possession in the disputed plot of lands and consequently the Court below passed an order for attachment till disposal of the civil suit. It is on record that the second party filed Title Suit No. 25 of 1993 in the Court of Subordinate Judge against the first party in respect of the disputed land. Hence the order passed by the revisional court below was rightly affirmed by the High Court Division. Abul Kalam Azad & Ors. vs. Osman Ali 7 BLT (AD)-298 Section-145 There are civil suits in respect of the case land between the same parties, wherein an order of injunction has been passed by civil Court. Although pendency of a suit is not a bar in drawing up a proceeding if the learned Magistrate finds that there is serious apprehension of breach of peace over the case land, BLT if the Civil Court passes an order of injunction and has regulated the possession of the subject matter of the proceeding, the learned Magistrate does not retain any jurisdiction over the same subject matter. Afsar Ali Khan & Ors. Vs. Md. Lutfar Rahman & Ors 8 BLT (HCD)-323 Section 145 Appointment of a receiver Magistrate exercising jurisdiction under section 145 Cr. P.C. drawing up a proceeding could in an emergent situation attach the case land in order to prevent imminent preach of the peace. The 2nd proviso to section 145 Cr.P.C. authorises the Magistrate to attach the subject matter of dispute at any time when he considered the case on of emergency and as such the Magistrate is required to record an emergent situation exists or existed for passing an order under the aforesaid provision. Haripada Dev Vs. Chitta Ranjan Dev and Ors. 12 BLT (AD)-92 Section-145(1) Whether a proceeding is said to he drawn up under Section-145(1) when the learned Magistrate inadvertently did not make any formal order BLT issued show cause notice upon the petitioners. A proceeding under Section 145 (1) of the Code is said to have been drawn up, if the Magistrate upon perusal of the police report or otherwise is satisfied that a dispute likely to cause breach of peace exists concerning any land or water, 'he shall make an order so satisfied and requiring the parties concerned in such dispute to attend his court….. Unless these preconditions are fulfilled, such as he shall make an order in writing stating the grounds of his satisfaction and secondly, he shall have to ask the parties concerned to submit written objection in support of their respective claim of possession therein a proceeding cannot be said to have been drawn up. In the instant case, the learned Magistrate issued show cause notice upon the second parties only and no show cause notice was issued upon the first party. Therefore, we are of the opinion that the learned Magistrate did not issue any preliminary order under Section 145(1) of the Code. Afsar Ali Khan & Ors. Vs. Md. Lutfar Rahman & Ors 8 BLT (HCD)-323 Section-145(4) The Magistrate should have passed a preliminary order stating that he is satisfied that the dispute is likely to cause a breach of peach and that he should also state that there is emergency which compels it necessary to attach the case land for avoiding further deterioting apprehension of breach of peace over possession of the case land between the parties. It is duty of the Magistrate to pass and promulgate preliminary order at the earliest moment and unless such preliminary order is made—no order of attachment of the case land can be made. Afsar Ali Khan & Ors. Vs. Md. Lutfar Rahman & Ors 8 BLT (HCD)-323 Section-145 (7) A proceeding under section 145 of the Code of Criminal Procedure being of a quasi civil nature, the legislature had been careful to incorporate sub-section(7) there to providing for impleading of the legal representatives of the deceased party, to the proceeding and thereafter continue with the enquiry, It is so provided because in a proceeding under section 145 of the Code of Criminal Procedure a Criminal Court enquires not only as to the possibility of a breach of the peace BLT also incidentally the title in order to find and possession which finding of a civil nature and such finding survives even after the death of a party. Hazi Abdul Ali & Ors Vs Md. Mesbauddin 3BLT (HCD)-184 Section-145(7) If it is argued the section 145(7) of the Code of Criminal Procedure would be limited to the enquiry stage only and not to revisional stage, the answer would be that this provision of substituting the heirs of the parties would be extended even before this court while exercising its revisional jurisdiction if it is so requested for ends of justice. Hazi Abdul Ali & Ors Vs Md. Mesbauddin 3 BLT (HCD)-184 Section-145 & 561A Held: We have found that regarding holding Nos. 59 and 59/1 Humayun Kabir got an order of temporary injunction in his favour in Title Suit No. 223/97. The present proceeding was started on 20.11.1997. As the order of the civil court was passed earlier regarding possession of the property there cannot be any proceeding under section 145 of Criminal Procedure in respect of the same property. So we are of the view that the proceeding is liable to be quashed. Abdul Alim Vs The State & Ors 8 BLT (HCD)-289- Section -145 read with Section -561A In the instant case it is seen' from the materials on record that the Is' party by the evidence of the witnesses who are neighbour to the land has proved his possession in the land in the proceeding and as against that the 2nd party has not adduced any evidence to dislodge the evidence of the said witnesses. Since the order relating to possession of the land that has been made by the learned Magistrate is based of the evidence of the reliable witnesses and 11 consequent thereupon order directing the receiver to handover possession of the land to the 1st party is, in our view legally sustainable. Saber Ahmed & Anr Vs. Gura Miah 11 BLT (AD)-135 Sections-154 & 155 Under Section 154 or 155 of the Code, every information relating to the commission of a cognizable or non-cognizable offence when given to an officer-in-charge of police station is a First Information Report and of necessary in general, should be lodged on the earliest opportunity. In this, case, from the evidence, of P.W. 44 and other witnesses, the most of the accused persons used to stay in Bangabhaban since 15th August, 1975 and in the name of an unwritten command council used to govern the country till they were made to leave on the 4th November, 1975, Still then they were not without influence. The accused Major Syed Farook Rahman tried to force a mutiny at Savar and Bogra Cantonment and the accused Major Khondaker Abdur Rashid tried unsuccessfully to take over the command of 2nd Field Artillery Regiment in 1976, Again, in 1980 they made another attempt to overthrow the Government BLT still no Government took any punitive action against any of them, rather, they were all given their arrear salaries. The accused Major Syed Farook Rahman even contested the Presidential Election in 1986 (P.W. 44). So the apprehension of the information about his own life and limb cannot be said to be unreasonable. Under such circumstances, the delay in lodging the FIR cannot vitiate the trial. The State Vs. Lt Col. (Retd) Farook Rahman & Ors 9 BLT (Special Issue 2001) Section-154 Sou moto F.I.R by police It is now well settled that the FIR is not a substantive evidence. The statement made in the FIR can only be used for the purpose of contradicting and discrediting the informant under section 145, or corroborating him under section 157 of the Evidence Act, when he is examined as a witness (Agonoo Nagesia V State of Bihar, AIR 1966 SC 119)" Object of such first information report is to set the criminal law in motion by giving an information regarding commission of an offence to trace and bring the culprits to book (Hasib V State of Bihar, AIR 1972 SC 283). Acting upon a FIR, when the police upon investigation traced out the real offenders even including the informant they are statutorily required under section 173 of the Code to forward a report along with the accused to the Magistrate having power to take cognizance for trial. Under section 190 of the Code, it is the Magistrate who is only empowered to decide on the report and the materials sent as to whether to take cognizance of the offence against the accused sent up or not. In such case, we therefore find no statutory requirement to lodge suo moto a FIR and register another case thereupon on the result of successful investigation. Abdur Rouf @ Rab Howlader Vs. The State & Ors 11 BLT (HCD)-198 Section -154 Incident took place on 27.9.1994 at 8-30 to 9-00 A. M. First Information Report was lodged as manifested from First Information itself is at 12-05 hours. Place of occurrence was about 15 kilometer from Police Station. It came out from the evidence of Informant PW 1 that First Information Report was written at 4/5-00 P.M. and it was written on the place of occurrence. It came out further from the evidence of PW 1 that he went to Police Station before Magrib Prayer and it was night when First Information Report was laid with Police Station and Chairman (PW 8) had been with him Exhibit-2/3 is Inquest Report and from Inquest Report it reveals that Inquest had been performed by Police at 12-30 P. M. on 27.9.1994. Exhibits - 4 and 4(1) manifest that Chairman Nurul Islam (PW 8) on 27.9.1994 sent an application to Officer-in -charge of Begumganj Police Station intimating him that Sabir Mia, condemned prisoner, Abuj Taher and Abul Kashem appellants in front of Sonali Bank, Amanullahpur killed Delwar Hossain (Delu Mia). It is in the evidence of PW 12 (Investigating Officer) who was, also, Officer-in-charge of Police Station that he reached place of occurrence on receipt of a letter from Chairman Nurul Islam (PW 8). When First Information Report was lodged with Police Station after dusk,- the time of lodging First Information Report could not be stated as 12-05 hours This infirmity of grave nature remains totally unexplained by prosecution. Specific suggestion put forward to Informant PW 1 that Police on arrival of the place of occurrence got no incriminating matter and without lodging any First Information Report went back to Police Station and, thereafter, with the active help of the Chairman (PW 8), the First Information Report was lodged implicating the accused persons as perpetrators of crime. The State Vs. Sabir Mia & ors 11 BLT (HCD)-294 Section-154 Life blood of prosecution case project in First Information Report and unfurled at time of trial was that by way of Memorandum No.l4/96(Bohi-1) 997 dated 20.10.1998 and letter from Consulate General, Bangladesh at Dubai communicated through Memorandum No. 2192/Second Part dated 15.11.1998 disclosure came forth that condemned prisoner abducted Rubel, a five years old boy from Bangladesh to Dubai and said boy Rubel was sold to local Arabs to be used as camel jockey. Rubel sustained injuries when he was being used as camel jockey. Bangladesh Consulate got minor boy Rubel admitted in Hospital. Condemned Prisoner was apprehended with help of Dubai Police. Bangladesh Consulate took custody of Rubel.—Held: non-production of Memo No. Pav-14/96(Bohi:-1)/997 dated 20.10.1998 and memo No. 2992/Second part dated ,15.11.1998 wherein letters sent by Bangladesh Consulate General in Dubai had n referred to. The two Memos are foundation of criminal prosecution against condemned prisoner.—Fundamental Structure 'Prosecution case, thus have fallen down. State Vs. Abul Kashem 12 BLT (HCD)-165 Section-154 F.I.R.—Bonafied Mistake First Information Report it is stated that formant PW 1 approached Sirajul Islam 11) and on asking PW 11 made disclosure that mother-in-law and sister-in-of PW 1 and Faridur Rahman on J.6.2000 at 5-00 p.m. started towards the se of maternal uncle of deceased Surja lm BLT PW 11 in his testimony stated date of incident to be on 16.6.2000 and that date he met condemned prisoners keya Begum, Faridur Rahman and sed Surja Begum at Bangla Motor and on query Rokeya Begum told him that they were on way to maternal uncle's house of deceased Surja Begum and infirmity in the date had been manifested and prosecution case stood nullified. First Information Report is neither starting nor the ending of a criminal case. On the strength of First Information Report investigation commences. Admittedly occurrence took place on 16.6.2000 and the date 15.6.2000 occurring in the middle portion of First Information Report is nothing BLT a bonafide mistake and by this the truthfulness of prosecution case cannot be demolished and the insertion 15.6.2000 in place of 16.6.2000 in middle portion of First Information Report is a very insignificant matter which must be ignored. The State Vs. Rokeya Begum & Anr. 13 BLT (HCD) 377 Section 154 Second First Information Report The Second First Information Report was not at all valid and legal. Investigation performed on the basis of Second First Information Report and submission of Police Report in the nature of charge sheet and commencement of Trial pursuant of Charge sheet on Second First Information Report was of no legal consequence and effect and recording of conviction for offence of section 302 of Penal Code and consequential sentence upon convict-appellant were absolutely illegal and legally infirm. Kazi Mahbubuddin Ahmed Vs. The State 13 BLT (HCD) 524 Section-154 First Information Report in a criminal case is an extremely vital and a valuable piece of evidence. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which crime was committed, the name of the actual culprits and the part played by them. Delay in lodging First Information Report quite often results in embellishment and embroidery which are creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Mujibor Rahman Vs The State 14 BLT (HCD) 109 Section 154 Delay in filing First Information Report Though, Informant PW1, PW2 and PW3 noticed marks of injuries on head and other persons of the body of deceased Hosna Nahar yet the cause of death could not be ascertained and eventually an Unnatural Death Case was registered with Police Station. Sometime had been consumed in procuring Post Mortem Report and on getting contents of Post Mortem Report law was set on roll by father of deceased Hosna Nahar on laying a First Information Report with Police Station. In First Information Report explanation had been offered in the terms that to ascertain cause of death of his daughter he insisted for Post Mortem examination of her daughter deceased Hosna Nahar at the time of registration of Unnatural Death case and on receipt of Post Mortem Report and, also, getting information from neighboring witnesses became fully aware of incident and, thereafter, lodged First Information Report on 27.3.2000. Explanation offered in First Information Report as to delay appeared to be very much plausible and acceptable. The State Vs. Md. Ainul Haque 14 BLT (HCD) 234 Section -154 read with Evidence Act, 1872 Section -114 (g) First Information was written one. It was prepared and submitted by Informant PW 1, PW 23, Police Officer Akber Ali Khan on receipt of the written complaint registered it as First Information Report. Informant PW 1 standing on witness box proved First Information Report and her signature appearing thereon. First Information Report and her signature had been exhibited as Exhibit-1 and 1/1 respectively. Informant PW 1 did not offer evidence before Tribunal in the term of version made by her in First Information Report and she was declared! hostile by prosecution. Informant PW 1J though, had given a go-bye to her version embodied in First Information Report BLT truth could not be buried when she proves First Information Report and her signature on First Information Report. Evidence of Informant PW. 1 before Tribunal demonstrated that in order to save her rapid husband, the convict-appellant made a departure from the factuality that came inn being in the earliest record of the case i.e. First Information Report. In this context it is posited that it could not be believed at all that a woman would lay a false written complaint in respect of the chastity of her daughter against her own husband if them would not have occurred any such heinous incident at all and if her husband would not have deflowered her deaf and dumb daughter, the victim of crime. Subsequent version laid bare by Informant PW 1 before Tribunal manifests that she did not ten evidence fairly and did not bring to factuality truth and factuality in Tribunal. Tribunal positively held that Informant (PW1) hers having been present in Police Station lodge First Information Report and she had been striving to conceal the incident to save her band from penalty. Abu Taher Vs The State 14 BLT (HCD) 68 Section-154 read with Evidence Act, 1872, Section-67 It appears that the occurrence took place on .5.1997 at 13.00 hours, BLT the First information Report was lodged on 9.6.1997 13.45 hours. BLT from the evidence on rd the explanation given by P.W.I in using such delay in lodging the First formation Report was not proved by evidence. So the First Information Report as lodged after an inordinate delay, which have a long rope to the prosecution to conduct the case and makes the prosecution case doubtful. Moreover the First formation report is Exbt. I, it was a written ejahar. It does not bear the name or signature of it scribe. P.W.7 testified that he recorded the case on receipt of the written ejhar. On the other hand the informant sely stated that the daroga (P.W.7) orded the First Information as per verbal statement. The contents of the ejahar had not n proved under section 67 of the Evidence t. So the First Information Report was illegally admitted into evidence and marked as Exbt.l. On the above grounds the First Information Report cannot be considered and should be left out of consideration Md. Tariqul Islam Vs. The State 14 BLT (HCD)-407 Section-154 Extra-ordinary delay -Delay in laying First information Report and inordinate delay in transmission of First Information Report to Chief Metropolitan Magistrate, Dhaka given a room of doubt to the authenticity First Information Report and credit-worthiness has been put to challenge. A inference had been legitimately drawn that there were chances of manipulation in First Information Report by falsely roping in the accused persons after due deliberation of the occurrence. Rustum & Ors Vs. The State 14 BLT (HCD)-435 Section - 154 read with Nari-O-Shishu Nirjaton (Bishesh Bidhan) Ain, 1995 Section-6(3) In the First Information Report the victim asserted that the accused entered into her hut by opening the door and assaulted her by log (????? ????) and caused injuries on her head, waist and right arm BLT in her evidence she stated that accused entered by cutting fence. Moreover medical report (Exht.4) do not provide any support regarding injuries as alleged by the victim. It is true that first Information Report is not a substantive piece of evidence BLT as the earliest recorded version the same may be looked into for the purpose of comparing the same with the statement made subsequently during trial by the prosecution witnesses. Any deviation or departure from the FIR story makes the prosecution case doubtful and casts serious doubt as to the credibility of the prosecution witnesses. Partial departure creates suspicion as to the truth of the prosecution case and total departure from FIR story sometimes warrant exclusion of the prosecution evidence from consideration. Rubel Vs. The State 14 BLT (HCD)-560 Section 154 It is true that the first Information Report is not the substantive piece of evidence BLT genesis of the case. The court can and should take notice to the earliest record of statement with regard to the prosecution case in context to the circumstances which makes the particular report of vital importance in the assessment of prosecution evidence. The court is entitled to note a conflict between the first recorded version of the prosecution case and the story that is made out in course of trial. Rawsan Ara Begum Vs. The State 15 BLT (HCD)-29 Section -154 read with Nari-O-Shishu Nirjaton Daman Ain, 2000 Section- 11(Kha) Delayed lodged of F.I.R -truthfulness -incident took place on 22.8.2001. It has been exposed to view from the testimony of PW 1 that her brother on getting information on 23.8.2001 recovered her with police force from her father- in -law's house in injured condition and kept her in the house of her husband' kindred elder brother Rabi Dutta (PW6).It, also, emerged from the testimony of PW1 that her brother (PW 4) got her admitted in Comilla Sadar Hospital on 24.8.2001 and treatment was provided to her. Information could be conveniently supplied to the police Station by the brother of PW 1 on 23.8.2001 or 24.8.2001 when PW1 was allegedly recovered from the house of her father-in law. First Information Report could be laid with the police Station on 24.8.2001 when PW 1 was admitted into Comilla Sadar Hospital BLT no First Information Report was lodged after the incident. Curiously enough to note that First Information Report was lodged after a period of eight (8) days of the incident and it was registered with Police Station on 30.8.2001. Explanation offered in First Information Report for the delay caused cannot be characterized to be reasonable and acceptable explanation. Long delay in laying First Information Report throws a serious doubt in the truthfulness of prosecution version and this delay pulverized the integrity of prosecution anecdote. Structure founded by prosecution in securing conviction and sentence upon convict-appellant collapsed. Kishore Kumar Dutta Vs. The State 15 BLT (HCD)-174 Sections-154 & 157 The difference between sections 154 and 157 is that the information covered by the former section must be reduced to writing which is a condition precedent BLT in case of the later section, it is only that information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given. Md. Saifuzzaman Vs. The State & Ors. 11 BLT (HCD)-410 Section 154 and Section-161 In the instant Case it appears that the present informant lodge a G.D. entry over the self-same occurrence on the following date, BLT the same has not been brought on record to show the bonafide of the prosecution case which ought to have been treated as F. I. R and the present F.I.R. so lodged by the informant of this case is not F.I.R in as much as the same having been recorded long after recording of a G.D. entry of self same occurrence may be treated as Statement under section 161 of the Code of Criminal Procedure and nothing more. In absence of the G.D. entry in question we are in dark about the manner of occurrence or the alleged taking of part by the individual accused thereto and as such the F.I.R. Ext. I in this case should not be used against the accused appellants in as much as the same may be treated as embellishment, as the earliest document on point of time over the self-same occurrence has been with held without any cogent explanation. Korban ali & Ors. Vs. The State 11 BLT (HCD)-267 Section-154 and Section-162 In criminal cases to start with, First Information Report takes a prominent place. First Information Report is the first step in almost all cases of Investigation. First Information Report is only an initiative to move the machinery and to investigate into a cognizable offence on receipt of a particular information. It is only at the investigation stage that all details can be gathered. Whether a particular information amounts to First Information Report or not is essentially a question of fact which is dependent upon the facts and circumstances of a case. There is no law that since one Information is earlier in point of time the latter Report or Information is not a First Information Report and should be excluded as being hit by section 162 of the Code. The State Vs. Ershad Ali Sikder and Ors. 12 BLT (HCD) 481 Section-154 Read with 342 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, accused's attention having not drawn to the confessional statement. So, it must be out of consideration. Mohammad Rafiqul Islam & Ors Vs The State 5 BLT (HCD)-101 Section 156(3) Read with Section 190(1) The informant petitioner filed an ejahar on 27.3.85 Police after completing investigation submitted charge sheet on 25.7.85 against the three accused opposite parties and there on 6.11.85 the accused-opposite parties filed an application before the learned Magistrate for releasing them from charge and for holding a further investigation alleging that one Ahsan Ali made the extra judicial statement on 3.11.85 BLT that the learned Magistrate did not consider that application and sent the case to the Court of Sessions Judge for trial- the accused opposite parties did not move their previous petition for further investigation nor did they file any fresh petition for further investigation on 24.6.86 they filed an application before the learned Sessions Judge praying for holding further investigation and on that application the learned Sessions Judge directing the police for holding further investigation is a misconceived one not falling within the preview of Section 156(3) Cr. P. C. No provision of law for cancelling the charge sheet once filed against some accused persons and accepted by the Magistrate- learned Sessions Judge has acted illegally and without jurisdiction in directing for holding further investigation. Sukhuil Kumar Sarker Vs Kazwazed Ali Sabed & Ors 3 BLT (HCD)-143 Section-161 The statements made in the F.I.R cannot be relied upon as substantive evidence while trying a criminal case- It is an elementary knowledge which a Judge of the rank of Sessions Judge is supposed to have- It can at best be used to contradict or corroborate the maker and non else- Relied on (1) PLD 1957 (SC) (Ind) Page 197 (2) 42 DLR ADs 186- A Statement made u/s 161 Cr. P. C cannot utilized as substantive evidence- Relied on 17 DLR SC 40. Abdus Sobhan Vs The State 2 BLT (HCD)-22 Section-161 The Statements recorded under section 161 Cr. P. C. is not evidence. It can only be used to contradict, corroborate the witnesses and the same cannot be considered for conviction. Abu Bakker & Ors. Vs. The State 5BLT (HCD)-133 Section-161 Weight of evidence due to the infirmity in the statement of the P.W.6 recorded after 111 days of the occurrence by the I.O. without any explanation as to the delay in recording it is seriously affected and dismissed- appellants are entitled to benefit to doubt in this case. Haji Md. Jamaluddin & Ors. Vs. The State 1 BLT (HCD)-23 Section-161 Belated statement - P.W. 12 said before the Court that he did not disclose names of the accused persons to the police officer being afraid of his life and disclosed to the I.O. that whatever he had to say he would disclose before the Court of law. P.W. 24 Tofazzal Hossain, Investigation Officer also spoke that P.O. 12 declined to disclose in details everything to him. The broad to give any detail of the occurrence for fear of his life. Although he deposed everything in details before the court of law, Now the question is whether such a witness should be believe or not? A statement under Section 161 of the Code of Criminal Procedure is not a substantive evidence. In such a statement under Section 161 of the Code the witness is required to state what he saw and heard about the occurrence soon after. In this case, an explanation was given by P.W. 12 that due to fear of his life he did not disclose immediately to the police details of the occurrence - as a matter of fact, we do not find any valid reason to discard the evidence of P.W. 12 to hold it incredible. Belated statement in Court, if can stand the scrutiny of cross examination can be believed if not otherwise unbelievable. Mahmudul Islam @ Ratan Vs. The State 9 BLT (AD)-153 Section-161 Delay in examining the witnesses under section 161 of the Code. PW 9, PW 5, PW 6, PW 3, PW 10 and PW 7 having been examined under section 161 of The Code of Criminal Procedure after a period of 115 days, 33 days, 47 days, 101 days and 29 days, their statements in Court are required to be left out of consideration and no conviction can be awarded putting reliance on evidences of the above prosecution witnesses. Rustum & Ors Vs. The State 14 BLT (HCD)435 Section -161 If a relevant fact is not mentioned in the statement under section 161 of The Code BLT stated before Court by PW or PWs as evidence, the evidence of PW or PWs would not be rejected if the evidence or evidences is or are otherwise creditworthy and acceptable and omission on the part of the police official to record the statement under section 161 of The Code would not take away the nature and character of the evidence. Touhid & Ors Vs. the State 15 BLT (HCD)364 Section-162 Under section 162 of The Code of Criminal Procedure it is only after an investigation has started that a statement made by a person to a police officer in the course on investigation that is not admissible in evidence except to the extent mentioned in that section. BLT the investigation by the police does not always begin immediately after the case is registered or with the mere arrival of the Investigation Officer on the scene of the occurrence after the making of the First information report, BLT when the police take the first concrete step for ascertaining the offence and the culprits. Very often the First Information Report lodged with the police is not a complete document and during the interval between the First Information Report and taking of some step in the nature of investigation further information is furnished to the police and such further information is merely supplemental to the First Information Report and cannot be considered to be a statement made to the police during the course of investigation. Bachchu Sarder & Ors Vs. The State 11 BLT(AD)-53 Section-164 Statement made by the victim girl u/s 164 having retracted statement made subsequently, whether can be re-assessed in the leave petition- It is true that the girl's testimony becomes shaken, BLT then it was up to the trial and the Appellate Court to assess her evidence including other evidence as a whole. Since her evidence and the other evidence on record have been concurrently accepted by the said courts, there is hardly any point in raising the contentions again-Petition dismissed. Siraj Mal Vs The State 2 BLT (AD)-18 Section-164 Confession- statement of a person that he was with the dacoit is not a confession of committing dacoity. Md. Hadi Hasan Vs The State 3 BLT (HCD) 159 Section-164 Whether an accused can retract his statement at the time of examination under section 342 of Cr. P. C. In a case of confessional statement it is not absolute that the confession maker can retracted his statement only through filed an application, BLT he can retracted his statement at the time of examination under section 342 of the Code of Criminal Procedure. Md. Tajul Islam Khokon & Ors Vs. The State 6 BLT (HCD)-79 Section-164 The confession was specifically brought to the notice of the condemned prisoner while examining him under section-342 of the Code of Criminal (Procedure. BLT he did not complain anything regarding the nature of his confession- Confession to be true and voluntary. Khalil Miah Vs. The State 7 BLT (AD)- 245 Section-164 Confessional Statement- Before placing reliance on any confession the Court must satisfy itself that it has been properly recorded according to the provisions of Section 164 of the Code of Criminal Procedure. When the accuse does not implicate himself in the alleged offence and does not admit his guilt, his statement is clearly exculpatory in nature and there is no confession in the eye of law. To fill up quota of deficiency of the prosecution, accused Emdadul Haque had been kept in police custody for over 37 hours preceding his production before the Magistrate without any satisfactory explanation. This makes the so-called confession totally useless. Emdadul Haque & Anr. Vs. The State 7 BLT (HCD)-76 Section-164 Confession- Doubted The Magistrate P.W. 13 who recorded the confessional statement of the confessing accuse Akbor Ali has failed to satisfy us as to its truth and voluntariness since he failed to ask the confessing accused as to whether he was tortured during custody or that he gave any understanding to the confessing accused that whether he confess or not, will not be handed over to police custody-Moreover, it appears that the confessing accused made the confessional statement after coming from remand which in no way remove to doubt that it is (Confessional Statement Ext.7) the product of threat, coercion and physical torture. Md. Akbor Ali & Ors Vs. The State 7 BLT (HCD)-317 Section-164 From the evidence of P.W. 29 Md Moshraf Magistrate 1st class who recorded dying declaration accused Abdul Ali at 9.35 at night on the written requisition of Dr. M.A. Mannan at Sarail Upazilla Health Complex Exhibit-24. From a reading of the deposition of P.W. 29 who recorded dying declaration it appears that the injuries of accused Abdul Ali were specious for which he gave a dying declaration on the day before the confessional statement by another Magistrate cum T.N.O. was recorded. It is mysterious that although he was in the thana Health Complex at 9.35 P.M. at night for recoding dying declaration that is no discharge certificate from the hospital and there is nothing on record that he was taken to police station and then to the court on next day and under was condition. This depicts a picture that reflects highhandedness of the investigating agency in this case. In such view of the matter Exhibit-10 in our opinion, has been procured from its makers accused Abul Ali condemned prisoner, by physical torture, threat and intimidation. The State Vs. Md. Abdul Ali & Ors 8 BLT (HCD)-74 Section-164 Whether the confessional statement is true and voluntary. On perusal of the confessional statement we find that after recording the confessional statement, the learned Magistrate issues a certificate stating that "I believe that this confession was voluntarily made. It was taken in my presence and was read over to the person making it and admitted by him to be correct We have minutely perused the confessional statement, Vis-a-vis the retreated confession of the appellant and the evidence of P.W. 12 Md. Abul Hasem, the learned Magistrate P.W. 12 stated that there is a note in the confessional statement that accused Shahidul Islam was arrested by the police on 08.01.1992 at 3.00 p.m. and he was produced before him on 09.01.992 at 2.00 p.m. upon perusal of the record we find that the accused Shahidul Islam filed an application from jail on 18.03.1992 addressing the Chief Metropolitan Magistrate to the effect that his confessional statement was procured on torture and that he wanted to retract the confessional statement. The learned Magistrate upon receipt of the said application recorded an order stating that the record of the case has already transmitted to the learned Sessions Judge for trial. From the above facts it appear to us that the application for retracting confession was made at a belated stage after more than two months of making confession. If the confession was obtained in oppression, there was no reason on the part of the accused to take such a long time for reaction. The injuries as noticed by D.W. 1 Mulla Nurul Islam on the person of the appellant were admittedly simple injuries which might be caused by friendly hands. In premises, we are of true and voluntary. Md. Shahidul Islam Vs. The State 8 BLT (HCD)-150 Section-164 The statement recorded under Section-164 of the Code is not substantive evidence BLT such statement can only be used for contradicting the maker of it under Sections-45 and 155 of the Evidence Act or for the purpose of corroborating him under Section-157 of the Evidence Act. Md. Nurul Alam Vs. Ali Jan & Ors. 8 BLT (AD)-23 Section-164 The High Court Division from consideration of the confessional statement Exhibit-8 found that this accused was produced before the recording officer on 28.10.1986 and the :used reported that he was arrested at 11.00 a.m. on 26.10.1986 and was produced before the recording officer from Court Hazot on 28.10.1986 and from this the High Court Division came to the finding that this condemned prisoner was kept in police custody for two days without any explanation. It appears from the judgment of High Court Division that have considered the pros and cons of the case on consideration of the evidence of the ling officer as well as the confessional lent and also considering several decisions of the Superior Courts of the Subcontinent came to the finding that the confessional statement is not true and voluntary. Learned Deputy Attorney General though strenuously argued that this case of murder BLT the fact remains that he failed to point out any illegality in the judgment of the High Court Division which may call for our interference at this stage. The State Vs. Md. Farid Karim & Ors. 8 BLT (AD)-87 Section-164 Product of intimidation and coersion Appellant is a married women—the woman of our society is not blind, rather they are well conversant out to the fact that the woman who engaged in sex trade are extremely hatred by our society. There are also hatred of the religious people too against them, and so far the human rights is concern that remains far away from them and for all the time they ought to have faced strong resistance by local people extortionist and mastan. This nature of circumstances invariably will be waiting or those traders, in such circumstances a married woman, the convict appellant has voluntarily came forward to make such statement involving herself in immoral acts, it is neither believable nor acceptable. It might be the product of intimidation and coersion. Joshna @ Reshma Vs The State & Ors. 10 BLT (HCD)-88 Section-164 Admissibility—Held: We have perused the statement along with evidence of P.W 11 Dewan Jakir Hossain. The aforesaid witness recording the statement admitted in cross-examination that the accused signed the statement in English and was asked the questions in English and Urdu BLT he recorded the statement in Bengali. Under Section 164(2) of the Code such confessional statements are required to be recorded and signed in the manner as provided in section 364 of the Code. Section 364 of the Code provides that the whole examination including every question put to an accused and every answer given by him shall be recorded in the language in which he is examined and if it is not practicable it can be written in the language of the Court or in English and if the accused does not understand the language in which it is written it shall be interpreted to him in a language which he understands to enable him to get a chance to explain or add to his answers. On perusal of the confessional statement (Ext-9) it appears to us that the same has been recorded by P.W. 11 Dewan Jakir Hossain in Bengali which the accused appellant admittedly does not understand and that though the witness knew English, the said statement has not been interpreted to the accused in the said language or any other language consideration to the perfunctory manner in which the statement has been recorded without complying with the requirement of law, we are of the view that the aforesaid confessional statement. (Ext. 9) is not admissible in law. Sajid Hossin Vs The State 10 BLT (HCD)-442 Section-164 Whether a confession Partly exculpatory and partly inculpatory was at all a confession or admission of a Crime. Held: The point was ultimately set at rest by a Full Bench of the Allahabad High Court in the case of Emperor V. Balmakund, AIR 1931 Allahabad 1 (F. B). The Full Bench approved the majority views taken by different Benches observing that those authorities actually established no more than "(a) where there is other evidence a portion of the confession may in the light of that evidence be rejected while acting upon remainder with the other evidence, and (b) where there is no other evidence and the exculpatory element is not inherently incredible, the court cannot accept the inculpatory element and reject the exculpatory element." The Full Bench then answered the reference as follows: "where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false; the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting exculpatory element as inherently incredible." The Supreme Court of India in the case of Nishi Kant Jha V The State of Bihar, AIR 1969 (SC) 422 approved the views of the Allahabad High Court. Our Appellate Division in the case of State Vs Lalu Mia and another 39 DLR (AD) 117 did not depart from the views taken by the F Bench in the case of Balmakund and t Supreme Court of India in the case of Nis Kanata Jha (supra). These principles a being followed over a century and we find no reason to take contrary view. The State Vs. Entaj Ali Sheikh 12 BLT (HCD) 3 Section -164 Confession of a co-accused implicating other co-accused Confession made by a confessing accused can be very much relied upon for awarding conviction upon confessing accused hims BLT confession of accused implicating other co-accused can be, also, a basis for awarding conviction upon the non-confessing accus if the confession is supported by other evidences on record. Nuruddin alias Shahabuddin & Anr Vs The State 13 BLT (HCD) 4 Section -164 Judicial Confessional Statement of co-convict Record indicates that convict-appellant was arrested on 2.8.1999 in connection with the case in hand. There is nothing on record demonstrating that convict-appellant was taken on remand to bring to light from him the crime episode. Record, also, reveals that co-convict Bashir Ahmed was taken on remand on three occasions and he was under lice custody for a period of nine (9) days in three terms, three days in each term. Judicial confessional statement was recorded by PW 3 on 13.12.1999 wherein the recovery event had been disclosed. Strange enough to note that before Judicial confessional statement recovery episode of skeleton of Motahar Member had been carried on. The cart went ahead of the horse and this casts a serious doubt in respect of truthfulness of prosecution case in respect of bridgment of convict-appellant in commission of crime. The recovery of skeleton of Motahar Member at the alleged pointing of convict-appellant along with co-convict Bashir Ahmed cannot be depicted as corroborative evidence to judicial confessional statement of co-convict Bashir Ahmed. Abdus Salam @ Biplob Vs The State 13 BLT (HCD)-567 Section-164 The accused Mafizuddin was arrested on 22.08.1997 and he was produced before the recording Magistrate on 24.08.1997 and there is no explanation for delay in producing the condemned prisoner Mafizuddin before the recording Magistrate within the specified time —The High Court Division opined that it is unsafe to rely on such confessional statement to convict accused Mafizuddin since same has been recorded after detaining him in police custody beyond the period permitted by law. The High Court Division has rightly held that the confessional statement of accused Mafizuddin is not true and voluntary. The State Vs. Mofizuddin & Ors 15 BLT (AD)-104 Section-164 read with Evidence Act, 1872 Section-30 When the matter of confessional statement does not involved his/herself with the alleged offence, it no confession at all, in such a case the prosecution should have placed the confessor as a witness instead of making him/her as accused in the case — the convict appellant posed herself having as immoral character. The cardinal question is now before us as to whether this statement bear any truthfulness since her statement was not corroborated by any P.Ws there by it lost of her credibility in its true sense— the statement of convict appellant made under Section 164 of the Code of Criminal procedure casts serious doubt about the truthfulness as well as genuineness of the alleged statement. Joshana @ Reshma Vs. The State 10 BLT (HCD)-88 Section-164 read with Evidence Act, 1872 [I of 1872] Section-80 In the instant case, the maker i.e., the victim while deposing as p.w 6 before the court did not support the prosecution case, she was cross-examined on behalf of the prosecution by declaring her hostile BLT the prosecution did not bring it to her notice the statement which was recorded under section 164 of the Code of Criminal Procedure. Moreover, no explanation was given as to why the magistrate who recorded the statement of the victim under section 164 of the Code Criminal Procedure was not produced before the tribunal for examination. For all these reasons, there was no scope of placing reliance upon the above statement recorded under section 164 of the Code of Criminal Procedure. Mir Hossain & Ors. Vs. The State 12 BLT (AD)-58 Section-164 read with Nari-O-Shishu Nirjaton Daman Ain 2000, Section-22 Section 22 of Ain of 2000 is almost akin to section 164 of The Code Distinction which is gathered is that in section 164 provision of recording confession along with the statement had been also provided and in section 22 of Ain of 2000 provision of recording a confession had not been provided. Wasim Miah & Ors. Vs. The State 12 BLT (HCD)-40 Section-164 Voluntary —voluntary means that one, who makes it out of his own free will, inspired by the sound of his own conscience. If the facts and circumstances surrounding the making of a confession appear to fling a doubt on the voluntariness and truthfulness of the confession, the court is to refuse to act upon the confession, even if, it is admissible in evidence. Mujibor Rahman Vs The State 14 BLT (HCD)-109 Section-164 Judicial confessional statement of convict appellant was recorded when he was taken on remand by the police for the second time for a period of 3 days. Order dated 25.11.1990 passed by Chief Metropolitan Magistrate demonstrates that the convict-appellant was sick and order for proper medical treatment was recorded. The question now is what this sickness was? Answer must be "sickness was on account of torture carried out and third degree method used by Police upon convict-appellant." Thus, it can be evidently said that Judicial confessional statement was neither true nor voluntary and no conviction can be awarded on the strength of confessional statement which was not free, true and voluntary. Mujibor Rahman Vs The State 14 BLT (HCD)-109 Section-164 Recording a Confessional Statement of a Sick Person The observations of the Magistrate clearly show that though Mamun had difficultly in talking because of his illness at that time, he was in a position to have clear understanding and to make statements. In our view there is no legal bar in recording a confessional statement of a sick person. However the law requires the recording Magistrate to assess the situation as a whole including the makes ability to understand the implication of what he is saying and to decide whether or not to certify the valuntriness and the truth of statement. The State Vs. Shaiokh Abdur Rahman & Ors 14 BLT (HCD)528 Section -164 Retraction of Confession If a confession is proved inculpatory in nature true and voluntary can be sole basis for conviction of the market of the confession, no matter whether it is retracted or not. Gour Chandra Pal Vs. The State 15 BLT (HCD)-36 Section-164 Held: We find from 1st column of the printed forms that the accused was produced before the Magistrate in his office chamber on 7.4.99 at 10 a.m. and he was arrested on 5.4.99. It is evident from the form that there are some other vacant spaces and it was not filled up carefully. It appears from the translation of the printed questions appears to have been made not properly. 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 were 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. Hence the trial court appears to have committed gross illegality in accepting the confessional statement as voluntary and true. Bashar & Ors Vs. the State 15 BLT (HCD)-391 Section-164 Exculpatory in nature It is also evident from the 164 statement of the accused that the confessing accused did not take any active part in the commission of offence. He categorically stated that " ???? ??? ?? ???? ????? ??????? ????” So, it is clear that the confessional statement is exculpatory in nature and as such the same cannot be used against the maker of the same. Bashar & Ors Vs. the State 15 BLT (HCD)-391 Section-164 read with Evidence Act, 1872 Section-25 A confession made to a police officer must be ruled out of evidence even if it was made in the immediate presence of a Magistrate as the terms of section 25 are not qualified or controlled by section 26. Bura Yunus & Ors Vs. The State 15 BLT (HCD)-383 Section 164 For the Purpose of conviction The confessional statement of an accused may be considered against his fellow accused charged with the same crime . In order to base conviction on a non-confessing accused the confession of a confessing accused is required to be corroborated by other corroborative evidence. The State Vs Md.Gaus Meah @ Rana& Ors. 13 BLT (HCD)-136 Section-164 A Confessional soliloquy is a direct piece of evidence. Confessional statement of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the confessing accused himself provided it is voluntary and, also, free. Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak BLT the truth. Such confession are made mostly out of a thirst to speak the truth. A free and voluntary confession deserves highest credit, because it is presumed to flow from highest sense of guilt. If the Court believes that the confession is voluntary and free, there is no legal bar on the Court for ordering conviction. The State Vs. Mehdi Hasan @ Modern & Ors. 13 BLT (HCD) 151. 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. 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. 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—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. 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. 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 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. 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 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(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—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 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—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—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. 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. 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. 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 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. 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. 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—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—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 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 90(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 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 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 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. 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. 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)—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)—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. 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 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. 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—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. 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 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. 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. 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. 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. 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. 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. 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(I) & 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 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. Code of Criminal Procedure, 1898 Section 221 and 222 - Charge should contain the particulars of time, place and manner of occurrence. Section 342 - While examining the accused the trial court must bring the incriminating materials on record to the notice of the accused in order to enable him to explain his position in relation thereto. Penal Code, 1860 Section 394 - Charge must be established by consistent and reliable evidence. In a criminal trial the charge framed should contain specifically the particulars of time, place and manner of occurrence. Again the court must bring to the notice of the accused while being examined under section 342 Cr.P.C, the increminating materials on record. The charge shall have to be proved by consistent and credible evidence. When the mandatory requirements are not complied with, such non-compliance causes prejudice to the accused occasioning failure of justice and as such the conviction and sentence passed therein cannot be sustained in law. Shahid Mia and another Vs. The State and another 13 MLR (2008) (HC) 303. Code of Criminal Procedure, 1898 Section 222(2) - Misjoinder of charges is an illegality not curable under section 537. Incidents of commission of offence failings within a period exceeding one year cannot be joined in a charge and tried together. Such misjoinder of charges is illegal and is not curable under section 537 Cr.P.C. and accordingly the learned judges of the High Court Division set aside the judgment of conviction and sentence and remanded the case for fresh trial in accordance with law. Abul Khair Vs. The State 11 MLR (2006) (HC) 337. Code of Criminal Procedure, 1898 Section 241A - Accused cannot be discharged when the charge prima facie appears to be supported by the materials on record. Section 561A - Order of discharge of accused which appears to be perverse and malafide is liable to be set aside. Accused opposite party who was officer in charge of Shaympur police station is found from the record to have connivance with the principal accused in the commission of the offence of kidnapping the victim boy for ransom and subsequently in his brutal murder in support of which there are sufficient materials including documentary evidence and as such there was no reason to discharge the accused under section 241A CrPC. The accused opposite party unsuccessfully moved earlier the High Court Division for quashment of the proceedings. Thereafter by suppressing the order of the High Court Division the accused Zahangir Alam fraudulently obtained the order of his discharge from the Druto Bichar Tribunal which is illegal, perverse and malafide. The High Court Division in a sumoto rule issued upon a newspaper report set aside the discharge order in exercise of its inherent power under section 561A Cr.P.C. State Vs. Zahangir Alarn 11 MLR (2006) (HC) 103. Criminal Law Amendment Act, 1958 Section 6A Emergency Powers Rules, 2007 Rule 19Ka - Time limit under both the provisions are held directory and not mandatory As there is no consequence provided, in the event of the failure to contuse trial within the time specified, the apex court held the provisions of 339C of the Code of Criminal Procedure, 1898, section 6A of the Criminal Law Amendment Act, 1958 and rule 19Ka of the Emergency Power Rules, 2007 as directory and not mandatory. However the apex court further advised to take disciplinary action against the judge concerned for his willful negligence in not complying with the provisions of the law in appropriate cases. A.H.M. Mustafa Kamal @ Lotus Kamal Vs. Government of Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs 14 MLR (2009) (AD) 45. Code of Criminal Procedure, 1898 Section 439 - Right of appeal is a legitimate right of the convicted. It cannot be denied on ground of limitation. In a case where the convict was tried in absentia, the limitation does not operate aginst the criminal appeal as the sentence is counted from the date of his arrest. In that view of the matter we learned judges of the High Court Division held the appeal should have admitted even though it was filed aftetr 5187 days. The legitimate right of appeal should not be denied on ground of imitation. The learned judges of the High Court Division condoned the delay of 5187 days and directed the Sessions Judge, Munshiganj to proceed with the appeal. Mohammadullah Vs. The State 12 MLR (2007) (HC) 207. Code of Criminal Procedure, 1898 Section 403 Provides that, no person shall be tried and convicted twice for the same offence Anti-Corruption Commission Act, 2004. Section 32 (2) does not apply to cases prior to the Act coming into operation. There is no res-judicata in the Criminal jurisdiction except the bar provided under section 403 Cr.P.C. When steps under section 6(5) of the Criminal Law Amendment Act, 1958 were duly taken, there was no legal requirement to obtain sanction any more. Section 32 of the Anti-Corruption Commission Act, 2004 has no manner of application to the cases prior to the Act coming into force. Mostafa Kamal and others Vs. Salahuddin Ahmad and others 14 MLR (2009) (AD) 412. Code of Criminal Procedure, 1898 Section 417 - Unless the order of acquittal suffers from non-consideration of material evidence on record or perversity no interference is warranted. Section 234(1) and 222(1) Charge framed in violation of the mandatory provision of law - defect is not curable under section 537 Cr.P.C. In order to constitute offence of misappropriation under section 409 of the Penal Code and criminal misconduct under section 5(2) of the Act II of 1947, there must be entrustment of the property and misappropriation thereof. When the fundamental characteristics of the offence complained of are not present - no offence is committed. Pariduddin Ahrned (Md.) Vs. Ataharuddin and another 13 MLR (2008) (HC) 186. Code of Criminal Procedure, 1898 Section 417 - Appeal against acquittal Penal Code, 1860 Section 302/34 Appeal against acquittal Government did not prefer appeal against acquittal. The informant preferred this appeal. The victim was murdered in a broad day light. The learned judges of the High Court Division upon scrutiny found sufficient evidence on record which can well warrant conviction of the accused. Accordingly the appeal is allowed and the order of acquittal is set aside and the case is sent back for retrial and disposal. 15 MLR (2010) (HC) 318. Code of Criminal Procedure, 1898 Section 417A, 423 and 439 –Enhancement of sentence without any notice served upon the convict appellants being illegal is set-aside By majority the appeals are allowed thereby holding the enhancement of sentence to 1O years R.I from 3 years R.I and fine to 10 thousand taka from 5 thousand taka without issuing any rule to the convict-appellants as illegal and thus reducing the same to the extent already awarded by the trial court under section 201/34 of the Penal Code. Khondaker Zulu Ban and another Vs. The State 13 MLR (2008) (AD) 302. Code of Criminal Procedure, 1898 Section 439 - Scope of interference with the order of conviction and sentence confirmed in appeal when the same suffers from inherent defect in evidence. Evidence Act, 1872 Section 114(g) - Non-examination of material witness and the adverse presumption against the genuineness of the prosecution case Narcotics Control Act, 1990. Section 19(3) - Offence of possession of ganja plants held not proved when the prosecution led no evidence as to the land where from the ganja plants recovered belongs to the convict-petitioner. Convict-petitioner was convicted for the offence under section 19(3) of the Narcotics Control Act, 1990 and the conviction and sentence were also affirmed by the Sessions Judge in appeal. The learned judge of the High Court Division set aside the order of conviction and sentence in view of absence of any evidence on record showing that the land wherefrom the ganja plants were recovered actually belongs to the convict-petitioner. Shamsher Ali (Md.) Vs. The State 12 MLR (2007) (HC) 38. Code of Criminal Procedure, 1898 Section 439 - Charge u/s 147, 148, 302/34 of the Penal Code framed on the materials on record held perfectly justified - Post mortem examination report is only a piece of evidence. When there are other sufficient evidence including ocular evidence the accused cannot be discharged only because the postmortem report does not support the death of the victim as suicidal in nature. The learned judges & the High Court Division found wrong with the impugned orderandr thus discharged the rule. Azad Hossain Sarder alias Bhojey others Vs. The State 15 MLR (2010) HCD 416. Code of Criminal Procedure, 1898 Section 439, 561A and 417(2) - Applicability to order of acquittal passed in appeal An application u/s 561A Cr.P.C. can be maintainable against conviction and sentence only when not based on any legal evidence. But when the same is based on some legal evidence such application is not maintainable. Against the order of acquittal passed by the Sessions Judge having the conviction and sentence based on no legal evidence, the petitioner at best could move the High Court Division under section 439 Cr.P.C. The apex court held the High Court Division was perfectly justified in discharging the Rule. Razia Khatun Vs. Idris Ali and another 12 MLR (2007) (AD) 22. Code of Criminal Procedure, 1898 Section 374 - Commutation of sentence of death into imprisonment for life on ground of certain mitigating factor. In this reference case the learned judges of the High Court Division held the conviction perfectly justified but commuted the sentence of death into imprisonment for life in view of the occurrence taking place following an altercation and the convict-appellant being at the age of 25 years. State Vs. Adam Khan 14 MLR (2009) (HC) 44. Code of Criminal Procedure, 1898 Section 476 and 195(1) (c) - Complaint by a private person with regard to forged document and use thereof in mutation proceeding is permissible in law. State Acquisition and Tenancy Act, 1950 Section 143 and 144 - These two sections operate in different perspectives so far whether revenue officer is a court or not, is concerned. Revenue officer while acting as Settlement officer in preparing the record of rights under section 144 of the State Acquisition and Tenancy Act, 1950 is held to be a revenue court. But the apex court held the revenue officer while effecting mutation under section 143 of the Act 1950, not a revenue court and as such private complaint regarding forged document and its use in the mutation proceeding is not barred under section 476 and 195(1)(c) of the Code of Criminal Procedure, 1898. Sahera Khatun (Most.) Vs. Abdur Rahim Sk and another 12 MLR (2007) (AD) 377. Code of Criminal Procedure, 1898 Section 476 and 195(1)(c) - Complaint to be made in respect forgery of document produced and given in evidence in relation to a proceedings before a court. The petitioner obtained an ex parte order of pre-emption on the basis of a forged kabala deed. In a subsequent suit the said kabala was challenged in which the copy of the order of pre-emption was produced and given in evidence. The kabala was found a forged document and the trial judge sent the complaint as required under section 476 and 195(1)(c) Cr.P.C to the Magistrate which the learned judges of the High Court Division of the Supreme Court held was perfectly justified in view of the fact the pre-emption order became an integral part of the forged kabala deed. Ruhul Amin Vs. The State and another 13 MLR (2008) (HC) 241. Code of Criminal Procedure, 1898 Section 491 - Victim who is an adult and is not an accused in any proceedings cannot be detained in custody whether judicial or otherwise. Law does not approve of detaining the victim who is an adult and is not an accused in any proceedings. The learned judge of the High Court Division directed the release of the victim forthwith. Jobbar Mia (Md.) on behalf of Fatema Farhana @ Aruna Roy Vs. The State represented by theDeputy Commissioner, Manikgonj 11 MLR (2006) (HC) 404. Code of Criminal Procedure, 1898 Section 494 - Withdrawal from prosecution To give consent to the withdrawal from prosecution is the discretion of the court where the proceedings are pending. Such discretion must be exercised judiciously and not mechanically. While according consent to the withdrawal, the court has to give its reason warranting such withdrawal. Apart from this it is well settled that a fugitive cannot get any protection of law. There is no element on record to show that the case was politically motivated. Having regard to the position of law the learned judges of the High Court Division set aside the impugned order and directed the tribunal below to proceed with the case in accordance with law. Ayrin Akhter Lypi Vs. Bahadur Khan and another 15 MLR (2010) (HC) 139. Code of Criminal Procedure, 1898 Section 498 - Anticipatory bail can be granted very sparingly in case of exceptional nature. Emergency Powers Rules, 2007 - Rule 19(gha) Ousts the jurisdiction of all courts including the Supreme Court to grant bail. When not specifically challenged the High Court Division cannot embark upon deciding the constitutionality of the Rule 19(gha) of the Emergency Powers Rules, 2007 while deciding the matter of granting bail. The Appellate Division held the jurisdiction of the courts including the Supreme Court has been ousted by Rule 19(gha) and as such set aside the impugned order passed by the High Court Division. The State Vs. Moyezuddin Sikder and others 13 MLR (2008) (AD) 208. Code of Criminal Procedure, 1898 Section 498 - Apex court discouraged grant of anticipatory bail in a case pending where the accused are F.I.R named. In the case of murder where the accused are named in the F.I.R and a regular case is pending the Appellate Division discouraged the grant of anticipatory bail. State Vs. A. Hoque alias Abdul Haque and others 15 MLR (2010) (AD) 151. Code of Criminal Procedure, 1898 Section 498 - Grant of anticipatory bail is an exception to the general rule. When there are direct allegations of commission of murder and the accused is fugitive from the process of justice, he cannot be granted anticipatory bail. When fugitive accused appears before the court seeking anticipatory bail, the court should not direct him to surrender before the court concerned and direct the police not to arrest him in the meantime. Such practice is not approved by law. When bail is refused the court must handover the accused to the police. State Vs. Zakaria Pintu alias Md.Zakaria Pintu and others 15 MLR (2010) (AD) 445. Code of Criminal Procedure, 1898 Section 498 - Anticipatory bail granted when the petitioner has no forum to surrender. In a case of murder where the petitioner is not named as an accused in the F.I.R. and during investigation he is being chased by the police and when he has no forum to surrender and seek for bail the High Court Division in the facts and circumstances granted anticipatory bail for limited period till submission of police report. Shawkat Hossain Vs. The State 11 MLR (2006) (HC) 43. Code of Criminal Procedure, 1898 Section 498 - Granting bail when completion of investigation is inordinately delayed. In a case of murder when the investigation was not complete for a long time and the accused petitioners were in custody for more than 8 months, the learned judges of the High Court Division in exercise of their discretion under section 498 Cr.P.C granted bail to the accused petitioners. Hanfa (Md.) and another Vs. The State 13 MLR (2008) (HC) 66 Code of Criminal Procedure, 1898 Section 498 - Bail granted to the accused cannot be cancelled on vague and uncertain allegations. Once the accused is granted bail he has the indefeasible right to enjoy the privilege thereof. The court cannot cancel his bail on vague and unspecific allegation of misusing the privilege of bail. The learned judges of the High Court Division on the above findings made the rule absolute and rejected the application for cancellation of bail as the same does not contain any specific allegation. Abdul Alim @ Chutta and another Vs. The State 15 MLR (2010) (HC) 476. 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. 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 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. 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(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. 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. 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 498—Order for conditional bail is illegal and not proper. AHM Siddique vs State 45 DLR (AD) 8. 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 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. 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. 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. 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. 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. 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. 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—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 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―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 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 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. 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. The procedure to be followed in this case is that the Druta Bichar Tribunal No. 2 shall hold simulta neous 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] Code of Criminal Procedure (V of 1898) 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] Code of Criminal Procedure (V of 1898) Section 164(3) Acceptability of a confession depends on the satisfaction of confession recording Magistrate. [73 DLR 18] Code of Criminal Procedure (V of 1898) 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] 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] Code of Criminal Procedure (V of 1898) 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] Code of Criminal Procedure (V of 1898) Section 75 গ্রেফতারি ইস্যুর সময় গ্রেফতারি পরোয়ানা প্রস্তুতকারী ব্যক্তিকে ফৌজদারী কার্যবিধির ধারা ৭৫ এর বিধানমতে নির্ধারিত ফরমে উল্লিখিত চাহিদা অনুযায়ী সঠিক ও সুস্পষ্টভাবে তথ্যাদি দ্বারা পূরণ করতে হবে; যেমনঃ (ক) যে ব্যক্তি বা যে সকল ব্যক্তি পরোয়ানা কার্যকর করবেন, তার বা তাদের নাম এবং পদবী ও ঠিকানা সুনির্দিষ্টভাবে উল্লেখ করতে হবে; (খ) যার প্রতি পরোয়ানা ইস্যু করা হচ্ছে অর্থাৎ অভিযুক্তের নাম ও ঠিকানা এজাহার/নালিশী মামলা কিংবা অভিযোগপত্রে বর্ণিতমতে সংশ্লিষ্ট মামলার নম্বর ও ধারা (এক্ষেত্রে জি আর/নালিশী মামলার নম্বর) এবং ক্ষেত্রমত আদালতের মামলার নম্বর ও ধারা সুনির্দিষ্ট ও সুস্পষ্ট ভাবে উল্লেখ করতে হবে; (গ) সংশ্লিষ্ট অঙ্গ (বিচারক)/ম্যাজিস্ট্রেটের স্বাক্ষরের নিচে নাম ও পদবীর সীল এবং ক্ষেত্রমত দায়িত্ব প্রাপ্ত বিচারকের নাম ও পদবীর সদস ৰামপাশে বর্ণিত সংশ্লিষ্ট আদালতের সুস্পষ্ট সীল ব্যবহার করতে হবে; (ঘ) গ্রেফতারি পরোয়ানা প্রকৃতকারী ব্যক্তির (অফিস স্টাফ) নাম, পদবী ও মোবাইল ফোন নাম্বারসহ সীল ও তার সংক্ষিপ্ত স্বাক্ষর ব্যবহার করতে হবে যাতে পরোয়ানা কার্যকরকারী ব্যক্তির পরোয়ানার সঠিকতা সম্পর্কে কোন সন্দেহের উদ্রেগ হলে পরোয়ানা প্রত্নতকারীর সাথে সরাসরি যোগাযোগ করে উহা সঠিকতা সম্পর্কে নিশ্চিত হতে পারেন। গ্রেফতারি পরোয়ানা প্রস্তুত করা হলে স্থানীয় অধিক্ষেত্র কার্যকর করণের জন্য সংশ্লিষ্ট পিয়নবহিতে এন্ট্রি করে বার্তাবাহকের মাধ্যমে তা পুলিশ সুপারের কার্যালয় কিংবা সংশ্লিষ্ট থানায় প্রেরণ করতে হবে এবং পুলিশ সুপারের কার্যালয়ের/খানার সংশ্লিষ্ট কর্মকর্তা কর্তৃক উক্ত পিয়নবহিতে স্বাক্ষর করে তা বুঝে নিতে হবে। গ্রেফতারির পরোয়ানা প্রেরণে কার্যকর করার জন্য পর্যায়ক্রমে তথ্যপ্রযুক্তি ব্যবহার কাজে লাগানো যেতে পারে। স্থানীয় অধিক্ষেত্রের বাহিরের জেলায় গ্রেফতারি পরোয়না কার্যকর করণের ক্ষেত্রে পরোয়ানা ইস্যুকারী কর্তৃপক্ষ গ্রেফতারি পরোয়ানা সীলগালা করে এবং অফিসের সীলমোহরের ছাপ দিয়ে সংশ্লিষ্ট জেলার পুলিশ সুপারের কার্যালয়ে প্রেরণ করবেন। সংশ্লিষ্ট পুলিশ সুপারের কার্যালয়ের দায়িত্ব প্রাপ্ত কর্মকর্তা সীল মোহরকৃত খাম খুলে প্রাপ্ত গ্রেফতারি পরোয়ানা পরীক্ষা করে উহার সঠিকতা নিশ্চিতঅন্তে পরবর্তী কার্যক্রমের জন্য ব্যবস্থা নিবেন। তবে কোন গ্রেফতারি পরোয়ানার ক্ষেত্রে সন্দেহের উদ্রেগ হলে পরোয়ানায় উল্লিখিত পরোয়ানায় প্রস্তুতকারীর মোবাইল ফোনে যোগাযোগ করে উহার সঠিকতা নিশ্চিত হয়ে পরবর্তী কার্যক্রম গ্রহণ করবেন। গ্রেফতারি পরোয়ানা কার্যকর করণের জন্য পরোয়ানা গ্রহণকারী কর্মকর্তা গ্রেফতারি পরোয়ানা প্রাপ্তিঅন্তে তা কার্যকর করণের পূর্বে পুনরায় পরীক্ষা করে যদি কোনরূপ সন্দেহের উদ্রেগ হয় সেক্ষেত্রে পরওয়ানায় উল্লিখিত পরওয়ানা প্রস্তুতকারীর মোবাইল ফোন নম্বরে ফোন করে উহার সঠিকতা নিশ্চিত হয়ে পরোয়ানা কার্যকর করবেন। গ্রেফতারি পরোয়ানা অনুসারে আসামীকে/আসামীদের গ্রেফতারের পর সংশ্লিষ্ট পুলিশ কর্মকর্তাকে উক্ত আসামী/ আসামীদের আইন নির্ধারিত সময়ের মধ্যে নিকটস্থ ম্যাজিস্ট্রেট/জজ আদালতে গ্রেফতারি পরোয়ানাসহ উপস্থাপন করতে হবে এবং ম্যাজিস্ট্রেট/জজ গ্রেফতারকৃত আসামী/আসামীদের জামিন প্রদান না করলে আদেশের কপি সহ হেফাজতি পরোয়ানা মুলে আসামী / আসামীদের জেল হাজতে প্রেরণসহ ক্ষেত্রমত সম্পূরক নথি তাৎক্ষণিকভাবে গ্রেফতারি পরোয়ানা ইস্যুকারী জজ/ম্যাজিস্ট্রেট আদালত বরাবর প্রেরণ করবেন। [73 DLR 157] Code of Criminal Procedure (V of 1898) Section 25 The Judges of the Supreme Court are the Justice of peace for whole country, they are full time Judge for whole of the country and wherever they go and ask any subordinate judicial officer to do any lawful work, it always carries the weight of a Judicial order. The contemnor committed a gross contempt wilfully defying the order given by Justice Syed Amirul Islam at Feni. Whenever any Judge visits any place within the country or the embassies of the country in abroad the office of the Judge goes with him. A Supreme Court Judge is a Judge for whole time for whole of the country. Whenever any Supreme Court Judge goes to any District whether on an official tour or private tour the concerned District Judgeship is usually kept informed by the office of the Registrar General of the Supreme Court of Bangladesh about his Lordship's tour programme, The District and Sessions Judge is usually asked to make the tour program of the concerned Judge comfortable and smooth in coordination with the Deputy Commissioner (DC) of the respective District. The Police Supers are also directed to ensure the security of the Judge on tour... ...... (25 & 29) 73 DLR 157 Madak Drabbya Niyantron Ain Code of Criminal Procedure (V of 1898) Section 103 When search would be made under Chapter VII of the Code compliance of provisions of section 103 is not mandatory regarding search and seizure under special law....(56) [73 DLR 36] Evidence Act (I of 1872) Sections 134 Although the independent and seizure-list witnesses do not support the prosecution case, conviction can be given and maintained relying upon the evidence of police witnesses, if such evidence inspires confidence in the mind of Judge or is found worthy of credit.......(58) [73 DLR 36] Madak Drabbya Niyantron Ain (XX of 1990) Section 19(1) 'Phensedyl', by name itself is not narcotics under section 19(1) of the Ain. But on perusal of the chemical examination report it appears that one of the elements of phensedyl is 'codeine,' which is opium derivative, was found by the chemical examiner, which being narcotics comes under the mischief of serial No. 3 of the table attached to section 19(1) of the Ain. [73 DLR 36] Madak Drabbya Niyantron Ain (XX of 1990) Section 50 Chemical examination report-Even the chemical examination report does not show proportion or percentage of 'codeine' contains. It cannot be said that out of alleged recovered phensedyl more than 2 Kgs 'codeine' was available. [73 DLR 37] Code of Criminal Procedure (V of 1898) Section 103 While the search is to be made for the purpose of recovery of documents or any other movable property or for the discovery of any person wrongfully confined, section 103 shall be applied. [73 DLR 37] Madak Drabbya Niyantron Ain (XX of 1990) Section 3(Ka) and 3(Kha) If the quantum of actual and real 'codeine' is found to be up to 2(two) Kgs, the offence will fall under the mischief of serial 3(ka) and the sentence will range from two years to ten years, but in case of even a smaller fraction above 2(two) Kgs, the offence will come under the mischief of serial 3(kha) and the sentence will be death or imprisonment for life. Since a slight variation or mistake in the measurement may lead to death sentence, it is imperative that the actual and real quantity of the 'codeine' in question be ascertained accurately and any kinds of reasonable doubt about quantity of the 'codeine' must go to the benefit of the appellant.....(70) [73 DLR 37] Constitution of Bangladesh, 1972 Article 111 Regarding non applicability of the decision of the case of Badal Kumar Paul vs the State, 55 DLR 218 in a case of phensidyl containing 'codeine". We have noticed that operation of the judgment and order of Badal Kumar Paul's case has been stayed by the Hon'ble Appellate Division and the order of stay is still in force. [73 DLR 37] Madak Drabbya Niyantron Ain (xx of 1990) Section 3(Kha) and 19 To sustain a charge under serial 3(kha) of the table attached to section 19(1) of the Ain, whole of the substance would not be treated as narcotics, only actual and real 'codeine' would be treated. ......(68) [73 DLR 37] Madak Drabbya Niyantron Ain (XX of 1990) Sections 36, 37 and 42 The Ain i.e. মাদকদ্রব্য নিয়ন্ত্রণ আইন, ১৯৯০ is a special law, enacted for specific purpose with special procedure and forum and there are special provisions relating to search and seizure of narcotics under sections 36 and 37 of the Ain. Under section 42 of the Ain it has been provided that the provisions of the Code shall apply if not inconsistent with the provisions of the Ain. Since the specific provisions have been incorporated regarding search and seizure in connection with the offences under this special law, the provisions of section 103 of the Code have no manner of application......(54) [73 DLR 37] Code of Criminal Procedure (V of 1898) Section 103 Provisions of section 103 of the Code shall strictly be applied only when search is made under Chapter VII of the Code and provisions of this section are not applicable when search and seizure are made in connection with the offences under special law like the Ain, মাদকদ্রব্য নিয়ন্ত্রণ আইন, ১৯৯০, as such, we do not find any illegality regarding modus operandi of search and seizure applied in this case.......(57) [73 DLR 37] Madak Drabbya Niyantron Ain (xx of 1990) Section 3(Ka), 3(Kha), 9 and 19(1) Although the prosecution succeeded in proving that the appellant violating the provisions of section 9 of the Ain possessed and controlled 4.00 liters of phensedyl containing 'codeine,' but the offence does not come under the purview of serial 3(kha), rather it comes under the mischief of serial 3(ka) of the table and, as such, the conviction and sentence are liable to be altered under serial 3(ka) from serial 3(kha) of the table attached to section 19(1) of the Ain. [73 DLR 38] Probation of Offenders Ordinance pay of 1960) Section 7 If the petitioner fails to observe any of the conditions and/or conditions of his bond, the trial Court shall proceed with the matter in accordance with the provisions of section 7 of the Ordinance and the probation order shall cease to have effect and the petitioner shall be sent to the jail to serve the remaining portion of sentence of imprisonment and he will also be liable to pay the fine. [73 DLR 90] Purity Test of Narcotics There were/are differences of opinion in Bangladesh as well as in India in respect of method for determining the weight of the offending narcotic drug. In 1996, our apex Court in Eliadah McCord (supra) declared the law that, "when it has been proved that the seized packets contained heroin then the whole of the contents must be treated as heroin for punishment. It is not necessary for the prosecution to prove 'the "actual and real heroin content" for the purpose of a conviction under 1(b) of the table". Under Article 111 of the Constitution, the law declared by the Appellate Division is binding on the High Court Division. Therefore, in the instant case, the 'whole substance' test would apply and accordingly, this Court holds that the petitioner was rightly convicted and sentenced under table 9 (kha) for possession of 411 pieces of yaba tablets weighing approximately 37.65 grams containing methyl amphetamine. [73 DLR 92] Money Laundering Protirodh Ain "Inquiry, investigation, lodging of complaint and conduct of prosecution of cases and holding of trial in respect of those cases under the Ain of 2002 shall proceed under the provisions of ACC Act, 2004 and that in case of any conflict with the provisions of the Ain of 2002, the provision of the ACC Act, 2004 and the Criminal law Amendment Act 1958 shall prevail though the Ain of 2002 was repealed by the Ordinance of 2008 keeping similar provisions as of section 3(K) in section 9 of the Ordinance of 2008 and also in section 9 of the Ain of 2009." [73 DLR (AD) (2021) 82] "If the actus reus of an offence is committed with necessary mens rea it remains for all time to come, even if the provisions of law creating the said very offence is repealed, without declaring the said law as ultra vires the Constitution. There is no doubt that, after the repeal of the relevant provision of law, the subsequent actus reus even, if committed, ceases to be an offence. But if the offence committed during the period when the said provision of law was in force, any offence committed during the substance of the said law but, detected/ revealed later on, even after it's repeal would still come under the mischief of the said repealed law as if the said law has not been repealed." [73 DLR (AD) (2021) 82] Whenever any Act was amended or repealed by any Ordinance the Legislature continued giving effect of the previous law as if the previous law has not been repealed. Thus, the offence committed by the accused petitioner between 19-12-2005 to 16-1 2008 being with in the period of continuation of the aforesaid law which were amended/repealed subsequently by different Ordinances/Acts, it cannot be said that the ACC did not have any authority to initiate. investigate, lodge FIR and continue to proceed with the case under the amended law it is to be deemed to have been committed under the law which has got a new life by the saving clause. Moreover, since it appears that from the date of framing of charge on 3-11 2015, the proceeding of the Case could not be concluded in last 5 (five) years because of obstructions created by the accused petitioner by obtaining stay orders from higher court on different pleas, the submission made by the learned Advocate for the Accused petitioner has no substance in the eye of law. [73 DLR (AD) (2021) 83] Nari-O-Shishu Nirjaton Daman Ain, 2000 S. (1ka)-On failure of the complainant to record an FIR at the Police Station, although urged, he may file a complaint to the Tribunal, duly attended by an affidavit in support of his authority. In such a case the Tribunal after examining the complainant, if satisfied, may send the complaint to any allegation or any other person to enquire into the matter and to report within 7 working days. On consideration of the enquiry report and the complaint if the Tribunal is satisfied about the existence of prima facie case, he will take cognizance and proceed with the trial. Babu Miah Vs. The State (Criminal), 2 ALR (2013)-HCD-338. S.3,27(1Ka)(Kha)-Nari-O-Shishu Nirjatan Daman Ain,2000,being a special law, has been enacted by the legislature with the intent and purpose to provide for stringent provisions for preventions of offence of oppression to woman and children and to provide for adequate measures for effective elimination of the offences related thereto. Section 3 provides that the provisions of this Ain shall prevail notwithstanding anything contained in any other law for the time being in force. On a careful reading of the Ain, we are of the view that the scheme of the legislation is initially for the complainant to lodge a complaint with any police officer or authorized person and if he fails after making request in getting the complaint accepted by such officer or authorized person, he may file a complaint accompanied by an affidavit to that effect before the Tribunal, whereupon the Tribunal, having been satisfied after examining the complainant may direct “any Magistrate or any person” to enquire into the complaint and submit report within 7 working days. Sirajul Islam Vs. State and another, 1 Counsel (2013)-HCD-46. S.3-The Nari-O-Shishu Nirjatan Daman Ain, 2000, being a special law, has been enacted by the legislature with the intent and purpose to provide for stringent provisions for prevention of offences of oppression to women and children and to provide for adequate measures for effective elimination of the offences related thereto.Section 3 provides that the provisions of this Ain shall prevail notwithstanding anything contained in any other law for the time being in force.On a careful reading of the Ain it appears that the scheme of the legislation is initially for the complainant to lodge a complaint with any authorized police officer an authorized person and if he fails after making request in getting the complaint accepted or authorized person, then he may file a complaint accompanied by an affidavit before the tribunal whereupon the tribunal, having been satisfied,after examining the complainant, may direct “any Magistrate or any person” to enquire into the complaint and submit report within 7 working days. Sirajul Islam Vs. The State and others, 1 ALR (2012)-HCD-162. S.326-A-Acid attack victims - Minimum compensation of Rs. 3 lakhs to be made available to each victim -Victim compensation scheme of States/U.Ts to be accordingly amended -And to be given wide publicity. AIR(2015)-SC-3662 (A) S. 326-A-Acid attack victims-Free treatment to be made available by Govt. and private hospitals-States/U.Ts. to ensure that private hospitals do not refuse free treatment -Free treatment not only means provision of physical treatment to victim of acid attack but also availability of medicines, bed and food in concerned hospital. AIR(2015)-SC-3662 (B) S.326-A-Acid attack victim-Free treatment -Hospital to issue certificate that individual is acid attack victim-Victim can use it for treatment and reconstructive surgeries or any other Govt. Scheme that victim may be entitled to. AIR (2015)-SC-3662 (C) Nari-O-Shishu Nirjatan Daman Ain, 2000, under Section 4(1), 22 We have perused the dying declaration of the victim after the death of the victim the petitioner remained in abscondence till the date of the conviction. Taking into consideration these facts, it came to the conclusion that it was the petitioner who after killing his wife had absconded. (5) Md. Sharifvs. The State (Surendra Kumar Sinha CJ) (Criminal) 12 ADC (2015)-Page 553 Ss.4(1) & 11(ka)-On analytical reading of the catena of decisions of our Apex Court it is found that it is the husband who will explain the plausible reason of cause of death of wife in his custody. But no such explanation has been given by the husband exculpating him in the offence of commission of murder rather has given confessional statement inculpating him, in the offence of murder.There is no doubt about the custodial death of the wife where husband is to be considered main perpetrator of the crime. Importing name of another person in the commission of the offence the condemned-prisoner has made the confessional statement which is of no use since no other evidence is available against other accused-person who has already been acquitted by the Court below and no appeal has also been preferred by the prosecution. So, the accused being husband is fully responsible for the cause of death of his wife and his offence is to be brought only within, the mischief of section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 since such offence has been committed when wife failed to fulfil the demand of dowry. State Vs. Mirajul Sheikh, 15 BLC (2010)-HCD-306. Section 4(2)(Ka)-The accused is to be treated as innocent until the prosecution proves its case beyond any shadow of doubt. Every man is presumed to be innocent until he is proved guilty. The defence is not required to prove anything and even if it does not challenge the evidence of the prosecution, the Court can not convict the accused unless and until the evidence adduced by the prosecution sufficiently prove the charge brought against the accused...(5) A people who are revolted by an execution, but not shoked to an assassination require that the public authorities should be armed with much sterner powers than elsewhere, since the first indispensable requisites of civilized life have nothing else to rest on"(Representative Government, 1861, Everyman's Library, p.179). The real aim of our criminal jurisprudence is to achieve a balance between protection of the individual epitomised by Bentham...(6) Sree Rabindra Nath Roy Vs. The State, 11 ADC (2014)-Page 164. Section 5/2000 Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain,1995. Section 8(1) Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless. The Appellate Division observed that the High Court Division noticed that P.W.6 Abdul Baset is not the full brother of P.W.2, Nazma and that P.W.7, Asia Begum is not the mother of the victim; rather P.W.7 is the step mother of the victim. With reference to the affidavit filed by the petitioners, the High Court Division found that the petitioners tried to impress upon that the victim of her own volition went to the brothel but that the said affidavit was neither properly exhibited nor was it filed in the trial Court and that the victim denied making any affidavit. The High Court Division having considered the evidence of doctor, P.W.9 and the medical report, exhibit-1 found that the age of the victim was about 17 years on the date of her examination and that the victim in her evidence claimed that she was about 13 or 14 years old. The finding of the doctor as to age is belied by the fact that his report shows the taking place of menarche one year back. In context of development of girls in Bangladesh the age stated by the victim would be more commensurate with menarche having started one year previously. The accused-petitioners having no morality could dare to sell the victim-P.W.2, Nazma to a brothel. They were convicted under section 8(1) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain,1995 and sentenced them to suffer imprisonment for life. The order of conviction and sentence was rightly affirmed by the High Court Division. Accordingly, criminal petition for leave to appeal is dismissed. Sukur Mahmood Vs. The State (Syed Mahmud Hossain J) 8 ALR 2016(2)-AD-141. Ss. 5, 6, 21 and 30-The state shall take all precautionary measure to protect vulnerable women and children who become easy prey of the culprits sometime at the cost of their life. Md. Mohor Ali and others Vs. The State. 32 BLD (2012)-HCD-370. Ss. 5, 6 and 30-Penalty for trafficking women and children. The High Court after considering the submissions made by the learned Advocates of both the parties and perusing the petition under section 561A of the Code of Criminal Procedure and petition of appeal and the Jail Appeal and also the judgment and order, it is clear that the prosecution adduced as many as 19 witnesses including the victims namely Most. Salma, Most. Jesmin, Most. Parveen, Most. Fatema, Most. Romesa Khatun, Most. Fatema and Most. Shefali Khatun who deposed in the Court as P.Ws. and disclosed their agony after recovery when they were kept firstly in the house of Ahmed Ali then in the house of Mohammad Ali and thereafter in the house of Mohor Ali, and lastly in the house of the convict-Nazrul which is situated within 1 and 1.5 kilometers from the border between India and Bangladesh. From the above circumstances there is no doubt that these women collected and gathered by inducing to provide with a goods jobs. The prosecution adduced sufficient evidence to show that they were kept near border in order to traffic them to India in return of huge amount of money. Fortunately, the local people could realize the incidence and recovered the victim women from the area along with 4 convicts but some of the convicts could escape therefrom. In this regard it is clear that the offences under section 5, 6 and section 30 of the Ain have been committed by the convicts. Md. Mohor Ali Vs. The State, 3 ALR (2014)-HCD-347. 6(1)-Meaning of the word 'keep'-The word 'keep' is very significant here. Keep does not mean is going with but it means to stay in a particular condition or position. And stay means to continue to be a particular place for a period of time without moving away. To hold anyone as guilty of the offence under the Ain, for trafficking, the accused should be put on trial when the victim was found to be under the custody and control of the offender for some period of time. State Vs. Anjali debi alias Monju Debi, 61 DLR 738. Ss. 6,7-No direct positive evidence is available to show that accused exported so-called victim India or sold him for any lawful or immoral purpose. Just because name of particular person is mentioned in FIR and or charge-sheet has been submitted against him is no sufficient to frame charge against him or to frame a charge mechanically. Debobrota Baiddya @ Debu Vs. State, 26 BLD (2006)-HCD-15. Ss. 6(1), 7 and 30-The allegation made in the First Information Report discloses that the petitioners are Advocates, all of them went their client Fatema Khairunnesa to the house of Jebonnesa (informants sister) at Commilla on 11-10-2001 alongwith police personnel in pursuance of search to recover the children of their client Fatema Khairunnesa, which does not constitute any criminal offence insofar as it relates to the petitioners. So, in the background of such facts of the case made here-in-above, the continuation of the impugned proceeding insofar as it relates to the petitioners amounts to an abuse of the process of the Court, which is liable to be quashed. There is no legal basis to justify the order of taking cognizance insofar as it relates to the accused petitioners under sections 6(1), 7 and 30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 ignoring the consecutive final reports under section 173 of the Code of Criminal Procedure. The proceeding insofar as it relates to the petitioners is quashed. Kamruzzaman Babul (Md.) Vs. State and another, 12 BLC-HCD-295. Ss. 5, 6 and 30-Penalty for trafficking women and children. The High Court after considering the submissions made by the learned Advocates of both the parties and perusing the petition under section 561A of the Code of Criminal Procedure and petition of appeal and the Jail Appeal and also the judgment and order, it is clear that the prosecution adduced as many as 19 witnesses including the victims namely Most. Salma, Most. Jesmin, Most, Parveen, Most. Fatema, Most. Romesa Khatun, Most. Fatema and Most. Shefali Khatun who deposed in the Court as P.Ws. and disclosed their agony after recovery when they were kept firstly in the house of Ahmed Ali then in the house of Mohammad Ali and thereafter in the house of Mohor Ali, and lastly in the house of the convict-Nazrul which is situated within 1 and 1.5 kilometers from the border between India and Bangladesh. From the above circumstances there is no doubt that these women collected and gathered by inducing to provide with a goods jobs. The prosecution adduced sufficient evidence to show that they were kept near border in order to traffic them to India in return of huge amount of money. Fortunately, the local people could realize the incidence and recovered the victim women from the area along with 4 convicts but some of the convicts could escape therefrom. In this regard it is clear that the offences under section 5, 6 and section 30 of the Ain have been committed by the convicts. Md. Mohor Ali Vs. The State, 3 ALR (2014)-HCD-347. ধারা ৭ এর ৯ হাইকোর্ট বিভাগের অভিমত এই যে, ডাক্তারী পরীক্ষা ও রাসায়নিক পরীক্ষা হইতে দেখা যাইতেছে যে, যদিও পরীক্ষাকারী ডাক্তার প্রফেসর মােঃ আশ্রাফুল আলম ভিকটিমকে যথাযথভাবে পরীক্ষা করিয়াছেন, কিন্তু প্যাথলজিক্যাল রিপাের্টে ভিকটিমের শধীরে কোন ধর্ষণ ও মার্ক অৰ ভায়ােলেন্সের চিহ্ন পাওয়া যায় নাই। ইহাতে প্রতীয়মান হইতেছে যে, ভিকটিম ধর্ষণের শিকার হইয়াজিলে নাকি ধর্ষণের প্রচেষ্টার শিকার হইয়াছিলাে তাহা যথাযথভাবে প্রমাণ হয় নাই । ইহা সত্ত্বেও বিজ্ঞ বিচারক ভিকটিমের বিরুদ্ধে আনীত নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৭/৯(১) ধারার বিধানে অভিযুক্ত করিয়াছেন । উক্ত আইন অনুযায়ী ধর্ষণ প্রচেষ্টার অপরাধের জন্য নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ১৯ (৪) ধারার বিধান রহিয়াছে। প্রসিকিউশন পক্ষের সকল সাক্ষ্যের সাক্ষ্য পর্যালােচনা করিয়া দেখা যাইতেছে যে, ভিকটিম মুন্নি বেগম কে আসামী শ্রী বিরাম চন্দ্র দাস ধর্ষণ করিয়াছিলাে নাকি ধর্ষণের প্রচেষ্টা করিয়াছিলাে তাহা প্রকৃত পক্ষে প্রমানীত হয় নাই। এইরূপ সন্দেহ থাকার কারণে আসামী শ্রী বিরাম চন্দ্র দাস এর বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(১) ধারার বিধানে অভিযোগ গঠন করার কোন অবকাশ ছিলাে না বরং তাহার বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ১৯(৪) ধারার বিধানে অভিযােগ গঠন করা যুক্তিযুক্ত ছিলাে। শ্রী বিরাম চন্দ্র দাস বনাম রাষ্ট্র: (Criminal) 9 ALR (2017)(I)-HCD-I0. Nari-O-Shishu S. 7. Penal Code S. 363-Kidnapping-Testimony of witness-Credibility- Minor discrepancies on trivial matters not touching core of case-Evidence of witness cannot be rejected as a whole. AIR (2015)-SC-I032 (8) Nari-O-Shishu S. 7. Penal Code S. 363 -Kidnapping-Examination of accused - Letters regarding kidnapping of child and demand of ransom by accused found by mother of child - In absence of cross-examination of any of witnesses that letters were written under pressure of police-Plea of accused in his statement u/S. 313 Cri. P. C. that letters were written under pressure of police-Cannot be accepted particularly when accused produced before Magistrate had admitted correctness of said letters. AIR (2015)-SC-1032 (C) Nari-O-Shishu S. 7. Penal Code S. 364A -Kidnapping for ransom-Acquittal of co-accused-No evidence to show that co-accused had instigated accused to kidnap child - Acquittal of co-accused would not affect case of accused. AIR (2015)-SC-1032 (A) Nari-O-Shishu S. 7. Penal Code S. 364-A-Kidnapping for ransom-Proof-Allegations that deceased and his son were kidnapped for ransom and killed by appellants-Dead bodies and personal belongings of deceased recovered from covered gutters at instance of accused-Failure of accused to give explanation or false explanation regarding information to recoveries admissible u/S. 27 of Evidence Act-Conviction of appellants, proper. AIR (2015)-SC-518(A). Nari-O-Shishu S. 7. Penal Code S.364-A-Kidnapping for ransom -Proof - Accused working as domestic servant alleged to have kidnapped child aged 3.50 years - FIR lodged on basis of letters written to parents regarding kidnapping and demand of ransom by accused - Plea that letters written under police pressure cannot be accepted as accused admitted its correctness before Magistrate - Discrepancies in evidence of witnesses are minor in nature - Child recovered from custody of accused at railway station - No explanation by accused as to how child could be brought to such place -Order convicting accused, proper. AIR (2015)-SC-1032 (D) Nari-O-Shishu S. 7. Penal Code S. 376-Rape-Circumstantial evidence-Complainant organized 'Jaagran' on offside of village and his seven years old daughter found missing - Her dead body found in neighbouring village in naked condition with injuries on her private parts and her head smashed with stone lying nearby - Medical evidence showing that she died homicidal death - Evidence of witnesses that accused also participated in 'Jaagran' along with other villagers - Blood-stained clothes of blood group of deceased recovered at instance of accused - No explanation offered by accused for injuries sustained by him - Accused guilty of offence. AIR (2015)-SC-1016 (A) Section 7/30 - This appeal by leave is directed from a judgment of the High Court Division maintaining the conviction and sentence of the appellants passed by the Nari-O-Shishu Nirjaton Daman Tribunal, Netrokona under section 7/30 of the Nari-O-Shishu Nirjaton Daman Ain, 2000 Hannan and others vs. The State (Surendra Kumar Sinha CJ) (Criminal) 13 ADC (2016) Page-88 Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000] Sections 7, 8, 9(2) and 30—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—The High Court Division helds that 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. In view of such facts the grounds taken by the accused-respondents are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuch as the grounds advanced before High Court Division are not correct or legal exposition of law. Therefore High Court Division hold that there are sufficient grounds for proceeding against the accused- respondents for going for trial under sections 7,8,9(2), 30 of the Ain, 2000. Md. Nurul Amin Vs. The State (Criminal) 7 ALR (2016) (1)-HCD-268 Section 8 read with Penal Code(XLV of 1860) Sections 300 and 302 The High Court Division observed that murder took place on the date, time and in the manner stated by P.Ws and convict Khaled had murdered the minor innocent boy by stabbing him with a knife.The inculpatory confessional statement of the convict is Found true and voluntary.The chain of evidence against convict complete and specific, the charge has been proved against the Convict. The State. Vs Khaled Hasan (Criminal) 7 ALR (2016)(1)-HCD-99. Sections 7/2000 and Nari-O-Shishu Nirjatan(Bishes Bidhan) Ain/1995 Section 10(1)-Husband is to explain when the wife was in his custody and met with her dead. When the wife met with her death while she was in the custody of her husband it is he who is to explain how she met with her death. It rather appears from the evidence that he allowed his wife to die and even after her death he did not inform any of the co-villagers or reported the matter to the police. None of the inmates of the house belonging to the convict also informed the police nor took any proper medical help for saving the life of the victim. The murder having taken place while the condemned convict was living with his w in the same house he was under an obligation to explain how his wjfe had met with her death. In the absence of any explanation coming from his side it seems none other than the husband who was responsible for causing the death in question. The State Vs. Asab Uddin, 5 ALR (2015)-HCD-35. Sections 7, 9(1) and 30-To ascertain the age of any person teeth is an important factor, the opinion of the doctor as to the age of the victim is not authanticated one. We should bear in mind that age is always depend upon the growth of the person who has been examined, a male or female of 18 years can be found as 15 or 16 years due to lack of his or her development of the body and again a male or female of 18 years can be found as 19 or 20 years and the reason is that his or her development and proberty was earlier. So,the opinion of the doctor as to the age of the victim is not in our view because the way the victim should be examined has not been done. There is no opinion as to the teeth, because as per Modi's Medical Jurisprudence to ascertain the age of any person teeth is an important factor. 'Modi' has also observed 'the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depend upon in estimating age in medico legal cases.The impugned judgment and order of conviction and sentence under section 7 of the Nari-O-Shishu Nirjatan Daman Ain 2000 is here by set aside. The convict appellant is acquitted from the charge leveled against him. Mehedi Hasan alias Rasel Vs. The State (Criminal), 5 ALR (2015)-HCD-. Section-7/9(3) Code of Criminal Procedure, 1898 Section-87,88-Since the accused did not appear in the trial Court and could not cross examine the prosecution witnesses, therefore, it is expedient for ends of justice to send back the case to the trial Court for giving the accused an opportunity to examine the prosecution witnesses if he so desires and also in order that the Court may examine the accused under section 342 of the Code of Criminal Procedure The State v. Robin, 35 BLD (2015)-AD-18 S. 7-It is urged on behalf of the petitioner that there was substantial defect in appraisal of the evidence by the Tribunal and thereby the High Court Division committed fundamental error in affirming the conviction and sentence which error has reflected in the judgment of this Division as well. Mohd. Tosibul Islam alias Sentu Vs. The State, 9 ADC (2012)-809. Sec. 7, 9(1), 30-In ascertaining the age of young persons, radiograms of several main joints of the upper or the lower extremely of one or both sides of the body should be taken. Mehedi Hasan @ Rasel Vs. The State, 32 BLD (2012)-HCD-578. S. 7-Opinion of doctor-Opinion of the doctor as to the age of the victim is not authenticated one because the way the victim should be examined has not been done. There is no opinion as to the teeth, because as per Modi's medical Jurisprudence to ascertain the age of any person teeth is an important factor 'Modi' has also observed the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depend upon in estimating age in medico legal case. Mehidi Hasan alias Rasel Vs. Stare, 17 BLC (2012)-HCD-436. S. 7 and 9(1) Offence of abduction and rape-Cr.PC. Section 561 A-Quashment of conviction and sentence-inordinate delay in lodging the complaint without satisfactory explanation renders the prosecution case doubtful. In her statement recorded under section 164 Cr.PC the victim woman of 16/17 years of age stated that her marriage with the convict petitioner was solemnized in the office of the Nikah Registrar and they sown in an affidavit to that effect before the Notary Public. Moreover there was inordinate delay of 2.50 months in lodging the complaint after the doubtful. Medical report shows that the victim was habituated to sexual intercourse. The trial was held in the absence of the accused after the publication of proclamation in the local news paper and as such he was not aware of the trial and could not prefer appeal within the specified time. The learned Judges of the High Court Division having found the conviction and sentence not based on legal evidence quashed the same. Firoz Chokder Vs. The State, 11 MLR (2006)-115. Whether the victim girl is a minor or not Radiologist certifying that the age of the victim girl to be 17.50 to 18.50 years. Held: We have considered the provisions of law and the facts of the case and on giving our anxious thought to the prevailing circumstances of our society, we have seen the victim girl in open Court and also in the official Chamber of the presiding Judge and we cannot but hold that she is not more than 16 years of age. Our opinion has been corroborated by the registration card and birth certificate. It is well settled principle of law that this birth certificate and school certificate will prevail over the medical certificate. Sarder Lufur Rahman Vs. The State, 19 BLT (2011)-HCD-280. S. 7 and 9(1)-Benefit of Doubt No FIR named eye witness were brought before the Court to prove the allegation of kidnapping and no police personnel who recovered the victim were placed before the Court to prove the said recovery and there is no evidence about the commission of rape upon the victim, we are constrained to hold the view that the prosecution has miserably failed to prove the charge leveled against the appellants in any way and the trial Court convicted the appellants on mere surmises and conjectures and thus the impugned judgment and order is liable to be set aside. Kazi Nurun Nabi Parag & Ors Vs. The State, 19 BLT (2011)-HCD-205. See 15 BLC (2010)-HCD-518. See 15 MLR (2010)-HCD-84. Ss. 7/36–Custody of the victim girl when she is above 18 years-S.S.C certificate is held to be a valid document as to determination of age of the victim- As per the S.S.C certificate the victim is above 18 years and is a major. She is not willing to go to the custody of her parents. She voluntarily married the accused and embraced Islam. When she expressed to be released on her own bond, the learned Judge of the Nari-O-Shishu Nirjatan Duran Tribunal, allowed her to be released from judicial custody on her own bond. The learned Judges of the High Court Division found the impugned order perfectly justified. Nirmal Das Vs. State and another, 13 MLR (2008)-HCD-386. S. 7 and 30-Abduction of a minor girl for the purpose of marrying her- The learned Judges of the High Court Division found from the S.S.C Registration Card and testimonial issued by the school authority, the victim girl minor and further held her consent to the alleged marriage of no value in the eye of law. They further held that the accused respondents abetted the offence by keeping the victim in illegal confinement and as such set aside the impugned order of discharge. Delwar Hossain Vs. The State and others, 13 MLR (2008)-HCD-258. Ss. 7 & 9-When no evidence has been adduced in Court about kidnapping of the victim or her recovery from the possession of the accused appellant Kazi Nurun Nabi alias Parag vis-à-vis when there is no evidence about the commission of rape upon the victim, we are constrainedto hold the view that the prosecution has miserably failed to prove the charge leveled against the appellants in any way and the trial Court convicted the appellants on mere surmises and conjectures and thus the impugned judgment and order is liable to be set aside we find merit in this appeals. Kazi Nurun Nabi Parag Vs. State, IS BLC (2010)-HCD-578. See 15 MLR (2010)-HCD-84. See 19 BLT (2011)-HCD-205. S. 7-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 Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 S.9 (kha) and 6(1)-Offence of abduction of minor girl for the purpose of marrying her. In the instant case the victim girl is found to be a minor of about 13 years at the time of occurrence. She was abducted by the accused appellant and subsequently married. It is contended that the victim consented to the marriage. The consent of the minor is immaterial as by reason of minority her consent is no consent in the eye of law. The learned judges of the High Court Division in that view confirmed the order of conviction and sentence with certain modification Abdul Mannan (Md.) alias Khalil Vs. State and another 13 MLR (2008)-HCD-291. Nari-O-Shishu Nirjatan Daman Ain, 2000- S. 7 and 30-Allegation made in the FIR and Naraji petition when does not disclose any offence the proceedings started thereon are liable to be quashed- The victim made statement under section 22 of the Ain, 2000 wherein she stated that she is minor and she married the accused voluntarily and they are living together as husband and wife The police submitted final report. The proceedings are drawn on the allegation of Naraji Petition which does not constitute any offence punishable under the Ain. Therefore the learned judges of the High Court Division held the proceedings abuse of the process of the court and as such quashed the same. Afsar Ali Vs. The State and another 14 MLR (2009)-HCD-369. S.363 PC-Offence of kidnapping. (Age below 18 years-consent immaterial) When a victim girl who is below 18 years of age is kidnapped by enticement from the lawful custody of her guardian, the offence when proved by cogent and consistent evidence is punishable under section-363 of Penal Code. The consent of the minor is immaterial and of no legal consequence. Abdul Karim V's. The State; 7 MLR (2002)-HCD-341 Same - 22 BLD (2002)-HCD-523. S. 370 -Child trafficking - Children in large number brought to State of Kerala from 3-4 other States-Children intercepted at railway station-Cases of child trafficking already registered by Railway Police-Crime Branch also carried on investigation and large number of persons involved, were arrested-Orphanages receiving children from agents, showing their co-operation in matter - Investigation entrusted to CBI-Child Welfare Committee directed to take appropriate measures in accordance with law. AIR (2016)-(NOC) 182 (Ker) (F) Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000) Sections 8, 7, 9(2) and 30-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 - The High Court Division helds that 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. In view of such facts the grounds taken by the accused-respondents are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuch as the grounds advanced before High Court Division are not correct or legal exposition of law. Therefore High Court Division hold that there are sufficient grounds for proceeding against the accused-respondents for going for trial under sections 7,8,9(2), 30 of the Ain, 2000 Md. Nurul Amir Vs. The State (Criminal) 7 ALR (2016) (1)-HCD-268 Section 8 read with Penal Code (XLV of 1860) Sections 300 and 302 The High Court Division observed that murder took place on the date, time and in the manner stated by P. Ws and convict Khaled had murdered the minor innocent boy by stabbing him with a knife. The inculpatory confessional statement of the convict is found true and voluntary. The chain of evidence against convict complete and specific, the charge has been proved against the Convict. The State. Vs Khaled Hasan (Criminal) 7 ALR (2016) (1)-HCD-99. Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 Ss. 13 and 14-Offence of kidnaping for ransom-Evidence Act, 1872- S.118-Child witness is competent when found capable of proper understanding- Telephonic conversation recorded leading to the arrest of the accused and recovery of the victim supported by ocular evidence can well form the basis of conviction. The conviction and sentence based on consistent and reliable evidence on record to the exclusion of any reasonable doubt affirmed by the High Court Division are held by the apex court perfectly justified. Jasimuddin and another Vs. The State 11 MLR (2006)-AD-162. ধারা ৯ এবং ৭ হাইকোর্ট বিভাগের অভিমত এই যে, ডাক্তারী পরীক্ষা ও রাসায়নিক পরীক্ষা হইতে দেখা যাইতেছে যে, যদিও পরীক্ষাকারী ডাক্তার প্রফেসর মােঃ আশ্রাফুল আলম ভিকটিমকে যথাযথভাবে পরীক্ষা করিয়াছেন, কিন্তু প্যাথলজিক্যাল রিপাের্টে ভিকটিমের শরীরে কোন ধর্ষণ ও মার্ক অব ভায়ােলেন্সের চিহ্ন পাওয়া যায় নাই। ইহাতে প্রতীয়মান হইতেছে যে, ভিকটিম ধর্ষণের শিকার হইয়াছিলাে নাকি ধর্ষণের প্রচেষ্টার শিকার হইয়াছিলাে তাহা যথাযথভাবে প্রমাণ হয় নাই। ইহা সত্ত্বেও বিজ্ঞ বিচারক ভিকটিমের বিরুদ্ধে আনীত নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৭/৯(১) ধারার বিধানে অভিযুক্ত করিয়াছেন। উক্ত আইন অনুযায়ী ধর্ষণ প্রচেষ্টার অপরাধের জন্য নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(৪) ধারার বিধান রহিয়াছে। প্রসিকিউশন পক্ষের সকল সাক্ষ্যের সাক্ষ্য পর্যালােচনা করিয়া দেখা যাইতেছে যে, ভিকটিম মুন্নি বেগম কে আসামী শ্রী বিরাম চন্দ্র দাস ধর্ষণ করিয়াছিলাে নাকি ধর্ষণের প্রচেষ্টা করিয়াছিলাে তাহা প্রকৃত পক্ষে প্রমানীত হয় নাই। এইরূপ সন্দেহ থাকার কারণে আসামী শ্রী বিরাম চন্দ্র দাস এর বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(১) ধারার বিধানে অভিযােগ গঠন করার কোন অবকাশ ছিলাে না বরং তাহার বিরুদ্ধে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(৪) ধারার বিধানে অভিযােগ গঠন করা যুক্তিযুক্ত ছিলাে। শ্রী বিরাম চন্দ্র দাস বনাম রাষ্ট্র: (Criminal) 9 ALR (2017)(1)-HCD-10. ধারা-৯(১) এবং ৯(৪) (খ)-ধর্ষণ ও ধর্ষণের চেষ্টা। অনেক সময় দেখা যায় এজাহারে এবং অভিযােগপত্রে একাধিক অপরাধের ধারা উল্লেখ থাকে। তবে চার্জ গঠনের সময় সকল ধারায় অভিযােগ গঠন করা হয় নাই কিন্তু সাক্ষ্য প্রমাণের ভিত্তিতে বিচারক যদি দেখতে পান চার্জের বাহিরে সংশ্লিষ্ট অন্যকোন অপরাধ প্রমাণিত হয়েছে, সেক্ষেত্রে বিচারক আদালত চার্জে উল্লেখিত নয় এমন অপরাধের ধারাতেও সাক্ষী প্রমাণের ভিত্তিতে আসামীকে দণ্ড প্রদান করতে পারেন। এই মামলায় ধর্ষণের অভিযােগ প্রমাণিত না হলেও ধর্ষণের প্রচেষ্টা সুপ্রমাণিত, মাননীয় বিচারক সঠিকভাবেই নারী ও শিশু নির্যাতন আইনের ৯(৪) (খ) ধারা অনুযায়ী আসামীকে ধর্ষণের প্রচেষ্টার জন্য দণ্ড প্রদান করেছেন। মােঃ লুৎফর রহমান ওরফে মােঃ লুৎফর বনাম -রাষ্ট্র ৩ এ এল, আর (২০১৪)এইচসিডি-৩৬৮. Section 9(1)-When allegation of rape is not sustainable. The High Court Division observed that the complainant in her complaint categorically stated that continuously she had sexual intercourse with the accused Shahidul Islam who made promise to marry her. From close analysis of the allegations made by the complainant High Court Division finds that she had consent for such intercourse. In the medical report it was opined that complainant has a sign of old sexual intercourse. Significantly the complainant aged about 40 years and she was a politician by profession and accused aged about 30 years. In such situation High Court Division feels that without her consent continuous cohabitation is absolutely improbable. The High Court Division has meticulously examined the allegations made in complaint, Charge Sheet, medical report, statements of the witnesses and other materials on record and the High Court Division is of the view that the petition of complaint do not disclose the offence prescribed under section (1) of the Ain 2000. Parul Akter Vs. Md. Shohidul Islam (Syed Md. Ziaul Karim J) 8 ALR 2016(2) HCD-109. Section 9(2)-Charge framing date is the relevant date for considering the age of the accused under the Children Act, 1974. The Appellate Division has given our anxious thought to the age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. The Appellate Division is inclined to commute the sentence of death to one of imprisonment of life. Accordingly, the criminal appeal is dismissed and the sentence of death is modified to one of imprisonment for life. Manik Vs. The State (Criminal) 8 ALR (2016) (2)-AD-59 Section 9-Code of Criminal Procedure: Section 561: In a 561A application no scope to examine evidence: The HCD held that in an application under Section 561A of the CrPC 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 and order passed by the Tribunal (Para 8). Sharif @ Shaira V. State 4 CLR (2016)-AD-8. Nari-O-Shishu Nirjatan Daman Ain, 2000: Section 9(1): Acid Aparadh Daman Ain, 2002: Sections 4 and 5: Code of Criminal Procedure, 1898: Section 173: Naraji Petition and Duties of a Judge or Magistrate: A three-Judge Bench of the Supreme Court of India in Bhagwant Singh Vs. Commissioner of Police (1985)2 SCC 537: AIR 1985 SC 1285 opined that while dealing with a final report submitted by the Police stating that no offence appears to have been committed, the Magistrate can adopt one of the three courses, i.e. (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and taking the view that there is sufficient ground for proceedings further, take cognizance of the offence and issue Process; or (3) he may direct for further investigation to be made by the Police under sub-section 3 of Section 156 of the Code of Criminal Procedure (briefly as Code). While adopting the first course (accepting the final report and dropping the proceedings), the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. In its subsequent decision in Union Public Service Commission Vs. Papaiah (1997) Cr.LJ.4636 (SC), the Court, as per the law laid down in Bhagwant Singh's case observed that the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is "must" (Para-17). Shahidul Biswas Vs. State 4 CLR (2016)-HCD-37. Section 9(1)/30-The accused-respondent was convicted under section 9(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced to suffer imprisonment for life and to pay a fine of Tk 5,000/- in default, to sufferrig orous imprisonment for 4(four) months more. ...(1) The State vs. Hafej Bakaul (Criminal) 13 ADC (2016)-Page 179 Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000) Sections 9(1)—There was no charge of abduction. The prosecutrix reached the bedroom of the Romeo, on her own accord and stayed there for quite few days. Meanwhile they two came out and once again went back to the refuge of the appellant. Amidst such free mixing, it is presumed that these two adults, man and woman, amicably indulged in sexual intercourses. But, as has been illustrated, the evidence meaning use of force or obtaining consent by deceitful means remained absolutely missing. Hence the charge of rape appears misconceived. Sanjay Kumar Biswas vs State (Criminal) 68 DLR (2016)-HCD-185 Section 9(3)-Reducing the sentence from death to imprisonment. The Appellate Division affirmed that the High Court Division considering tender age of the respondents, the facts that the respondents were in death cell for a long period and other circumstances, reduced the sentence from death to imprisonment for life. The State Vs. Noor Islam (Criminal), 8 ALR (2016) (2)-AD-196. Section 9/2000 and Nari 0-Shishu B.Bidha Ain 1995/Section 6(2) Commute the death sentence to imprisonmnent for life Held; 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 condemn cell since 12.07.2001, that is, more than 14 years. Considering all aspects of the case, we are of the view that the death sentence of the petitioner be commuted to imprisonment for life. BLAST & Anr Vs. Govt. of Bangladesh 24 BLT (2016)-AD-10. Section 9(1)/2000 and Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 Sections 6(1), 9(kha) and 9 (Ga) Without appreciating the narajec petition and without any speaking order accepted the Police report by the Nari-O-Shishu Nirjatan Daman Bishes Adalat cannot be sustained. The High Court Division observed that the informant categorically narrated the manner of occurrence as well as the manner of committing rape by the accused and the Police during investigation in its report merely stated that there is no eye witness to the occurrence. But the informant in his narajee petition categorically stated that the Police without visiting the place of occurrence without examining the eye witnesses most illegally submitted a perfunctory final report. Md. Lutfor Rahman Vs.Md. Musharraf Hossain (Criminal) 8 ALR (2016) (2)-HCD-49 Section 9(1)/2000 Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 Section 6(4): Death sentence for rape and murder: Extenuating circumstances of 27 years young man and long time detention cannot be a ground for remitting death sentence: Mr. Khorshed Alam Khan, the learned Advocate for the accused-appellants has made submissions to the effect also that the condemned accused-appellant is a young man of 27 years only and he is being detained in considering this fact as an extenuating circumstances his death sentence may be now commuted to imprisonment of life for the ends of justice. But considering the very nature of the offence which is heinous, ghastly arid barbaric act of rape and murder committed upon a 16 years old girl we are of the opinion that justice will be denied if the death sentence of the accused-Aappellant Rakibor @ Okibor is commuted to imprisonment for life. The law has provided death sentence for some offences....(Para 14). Rokibur Vs. State 4 CLR (2016)-AD-123. Section 9(1)-Penetration of a finger into the vagina of the victim Tanmim does not constitute the offence of rape punishable under this Act. The High Court Division did not find any other reason to disbelieve the testimonies of PW 2 and PW 3. Penetration of a finger into the vagina of the victim Tanmim does not constitute the offence of rape punishable under section 9(1) of the Nari O Shishi Nirjatan Daman Ain, 2000. Considering the evidence of victim P.W.2 and his father P.W.3 along with inconsistenet evidence of P.W.4 to P.W.5 The High Court Division is of the view that convict appellant did not commit rape on his brothers daughter victim Tanmim, a child of 3 years old, Md. Shakhawat Hossain Vs. The State (Cri) 7 ALR (2016) (1)-HCD-62. S. 9 Penal Code S. 376-Rape-Consent-Accused allegedly committed rape on victim and after pouring kerosene oil set her ablaze - Material on record shows that victim was minor Victim had made hue and cry on commission of rape on her and immediately threatened accused with disclosure of incident to her mother - Not case of consensual sex -Order of acquitting accused, set aside. Order of Gauhati High Court, Reversed. AIR (2016)-SC-341 (A) S. 9 Penal Code S. 376-Rape/Child abuse-Punishment of chemical castration-Court cannot provide higher punishment-It could only suggest to legislature-Need has arisen for defining term 'child' in context of rape and providing for more severe punishment in such cases, AIR (2016)-SC 358 (A) S. 9 Penal Code S. 376-Rape-Consensual Sex-Proof - Allegations that appellant committed rape of prosecutrix in her residential accommodation Testimony of prosecutrix that she was in relationship with appellant for last two years prior to incident and appellant used to stay overnight-In view of FIR, testimony of prosecutrix and MLC report prepared by medical practitioner Alleged act of appellant seems to be consensual in nature - Acquittal, proper. AIR (2016)-SC-406(A). Sections 7, 9(1) and 30-To ascertain the age of any person teeth is an important factor, the opinion of the doctor as to the age of the victim is not authanticated one. We should bear in mind that age is always depend upon the growth of the person who has been examined, a male or female of 18 years can be found as 15 or 16 years due to lack of his or her development of the body and again a male or female of 18 years can be found as 19 or 20 years and the reason is that his or her development and proberty was earlier. So, the opinion of the doctor as to the age of the victim is not in our view because the way the victim should be examined has not been done. There is no opinion as to the teeth, because as per Modi's Medical Jurisprudence to ascertain the age of any person teeth is an important factor. Modi' has also observed the progressive increase in height and weight according to age varies so greatly in individuals that it cannot be depend upon in estimating age in medico legal cases. The impugned judgment and order of conviction and sentence under section 7 of the Nari-O-Shishu Nirjatan Daman Ain 2000 is here by set aside. The convict appellant is acquitted from the charge leveled against him. Mehedi Hasan alias Rasel Vs. The State (Criminal), 5 ALR (2015)-HCD-84. Section-7/9(3) Code of Criminal Procedure, 1898 Section—87,88 Since the accused did not appear in the trial Court and could not cross-examine the prosecution witnesses, therefore, it is expedient for ends of justice to send back the case to the trial Court for giving the accused an opportunity to examine the prosecution witnesses if he so desires and also in order that the Court may examine the accused under section 342 of the Code of Criminal Procedure. The State v. Robin, 35 BLD (2015)-AD-18. Section 9 (2) (3) He submits that, the High Court Division was totally wrong in coming to the finding that the prosecution failed to prove the charge of rape on Rahima by the two accused punishable under section 9(2) and (3) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. High Court Division solely relied on the opinion of the doctor given in the post mortem report that "No sign of recent sexual intercourse was seen" ignoring the confessional statements of the accused ....(7) The State vs. Siddiqur Rahman (Abdul Wahhab Miah J) (Criminal) 12 ADC (2015)-Page 574 Section 9(2)—Age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. In view of such matter and the decisions referred the Appellate Division was inclined to commute the sentence of death to one of imprisonment of life. Manik Vs. The State, (Criminal), 4 LNJ(2015)-AD-213 Section-9(2)-Sentence of death may be modified to one of imprisonment for life on consideration of tender age of the accused and long suffering of the pangs of death in the condemned cell. Manik v. The State, 35 BLD (2015)-AD-63 Section 9(1)/2000-and Nari O-Shishu B. Bidhan Ain/95 Section 6(2)(4)-The provisions of sub-sections (2) and (4) of section 6 deprive a tribunal from discharging it's constitutional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus, there is no gainsaying that sub-sections (2) and (4) of section 6 of the Am as well as section 303 of the Code run contrary to those statutory safeguards which give a tribunal the discretion in the matter of imposing sentence. Bangladesh Legal Aid and Services Trust (BLAST) vs State 67 DLR (2015)-AD- 185. Section 9(1)/2000-and Nari O-Shishu B.Bidhan Ain/95 Section-6(1) Penal Code,1860 Continuous consent of the victim for sexual intercourse with the accused does not come within the purview of rape as laid down in section 2(M) of Nari-O Shishu Nirjatan (Bishes Bidhan) Ain 1995 and as such framing of charge under section 6(1) of Nari-O-Shishu Nirjatan (Bishes Bidhan) Ain is liable to be set aside. Idris Miah v. Arafa Begum & The State 35 BLD (2015)-HCD-325 Section 9/2000-and Nari O-Shishu B. Bidhan Ain/95 Section 6(2) of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, (Ain XVIII of 1995) and section 34 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (Ain VIII of 2000) has been convicted by the Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Manikgonj for sexually assaulting to death of Sumi Akhter, a minor girl aged at about 7 years (1) BLAST vs.Minisiry of Home Affairs (Surendra Kumar Sinha CJ), 12 ADC(2015)-Page-245 Section 9(1)/2000-and Nari O-Shishu B. Bidhan Ain/95 Sections 6(1)114 Code of Criminal Procedure, Section 342 In the facts and circumstances of the case no eye witness is supposed to remain present at the time of commission of rape and the sole evidence of the victim and circumstantial evidence ought to have been considered, and also to consider whether the High Court Division illegally acquitted the accused without reversing the finding of the trial Court that all the prosecution witnesses supported the FIR. case and the evidence of the prosecution witnesses were believed and accepted upon giving cogent reasons. The State vs. Mostafizur Rahman (Nazmun Ara Sultana J)(Criminal) 12 ADC (2015)-Page-369. Section 9(1)-and Nari-O-Shishu B.Bidhan Ain/95 Section 6(1)-Sexual intercourse with consent is not a rape. There was a continuous consent of the complainant for sexual intercourse with the accused which will not come within the purview of rape as laid down in Ain,1995, therefore, the learned Judge without complying the Provisions of law most erroneously framed charge under Section 6(1)of the Ain, 1995. Idris Miah Vs. Arafa Begum (Criminal), 5 ALR (2015)-HCD-70. (23) Section 9(1)-and Nari O-Shishu B.Bidhan Ain/95 Sections 6(2)(4)-Death-Since the only sentence is provided for the offence the courts 'will be left with no option other than to award the death sentence. This is totally inhumane and illogical. A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. Bangladesh Legal Aid and Services Trust (BLAST) vs State (Civil) 67 DLR (2015)-AD-1. Section 9(1)/2000-and Nari-O-Shishu B. Bidhan Ain/95 Section 6(2)(4)-Until new legislation is made the imposition of sentence in respect of offences in sub-section(2) and(4) of section 6 of the Ain of 1995 shall be regulated by the Nari-o-Shishu Nirjatan Daman Ain, 2000. Bangladesh Legal Aid and Services Trust (BLAST) vs State (Civil) 67 DLR (2015)-AD-185. Section 9(1)-and Nari O-Shishu B. Bidhan Ain/95 Sections 6(1)/14-Rape-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, as beyond any reasonable doubt which is the fundament requirement of convic tion. (Per Md Anwarul Haque J, majority) State vs Mostafizur Rahman (Criminal), 67 DLR (2015)-AD-218. Section 9(1)-and Nirjatan (Bishesh Bidhan) Ain/95 Section 6(4)-The offence committed by the appellant is so heinous and barbaric in nature that the only punishment for this offence can be the death penalty. To secure the ends of justice this type of offenders must be awarded the highest punishment provided by law, any leniency, if shown to this type of offenders, will cause miscarriage of justice. Rokibur (Md)@ Rokib@ Okibar vs State (Criminal), 20 BLC (2015)-AD-217. Section 9(1)-and Nari-O-Shishu Nirjatan Daman (Bis. Bidhan) Ain 1995 Sec.-6(4)-In the present case the offence committed by this accused-appellant Rakibor & Okibor is so heinous and barbaric in nature that the only punishment for this offence can be the death penalty. To secure the ends of justice this type of offenders must be awarded the highest punishment provided by law, any leniency, if shown to this type of offenders, will cause miscarriage of justice. Md.Rokibur@Rokib@Okibar Vs. The State, (Criminal), 4 LNJ (2015)-AD-207. Sections 9 (Ga)/6(1)/14 Allegations after 14 days-Benefit of doubt Non discloser of the material allegation at the earliest opportunities and alleged subsequently after 14 days from the date of occurrence by the P.W. 1 also an element to cast a doubt of the prosecution case while there is no legal and reliable explanation under what circumstances the P. W. 1 informant did not disclose the material allegation neither before the police nor before the Magistrate while she was produced before them immediately after occurrence under Section 54 of the Code of Criminal Procedure. Md. Shahjahan Ali Vs. The State (Criminal) 5 ALR (2015)-HCD-244. Section 9(1)-Since a child under the age of sixteen is not in a position to give consent to sexual intercourse or sodomy, the sodomy committed by a man even on a consenting male-child will also come under the mischief of rape punishable under section 9(1) of the Ain. The criminal proceeding in such cases must be instituted and proceeded against the perpetrator-man under the provisions of the Ain. Abdus Sanad Vs. State, 19 BLC (2014)-HCD-171. S.9(1),30-Cr.P.C 1898 S.265H Mere issuance of a process for the attendance of a witness is not enough; The Court must see that the process so issued has been executed. Hasan ArifUllah Vs. Nilufar Yesmin@Reba & Anr.34 BLD(2014)-AD-8. S. 9(1)/30-Let us see whether the High Court Division was correct in taking the said views. We have gone through the order sheets of the Tribunal. It does not appear that the process to secure the attendance of the witnesses was exhausted. The allegations made in the FIR being serious in nature, the Tribunal before recording the order of acquittal of the accused was duty bound to ensure that the process for the attendance of the prosecution witnessws was exhausted, but it did not. Therefore, we do not find anything that on some dates hajira of one witness on behalf of the prosecution was filed (it is not clear whether it was the informant),but that witness was not examined on this or that reason..(8). Hasan ArifUllah Vs. Most. Nilufar Yesmin, 10 ADC (2013)-Page-977. S. 9(3)-In this case of gang rape committed by three fully grown up men resulting in the death of a helpless teen ager, and thereby smashing her person, her dream, her modesty, her dignity, her chastity being regarded as the invaluable and inviolable asset by any women and when such a crime is committed by the convicts caring the least about the sanction provided for the prevailing law and caring not at all about any social resistance as provided by their pre-plan and conduct, we are surprised to see as to why this case was not treated as a rarest of rare cases and death sentence was not imposed on these three rapists and on their accomplice. Rehana Begum Vs. State, 63 DLR-HCD-548. S. 9(1)-Evidence Act (I of 1872) Ss. 45 and 134-The prosecution witnesses have been able to prove the prosecution case beyond reasonable doubt. The Medical Board has categorically observed that the victim was bearing sign of forceful sexual acts when the victim herself and other witnesses have corroborated one another of such facts. Moreso, in the present rape case conviction and sentence can be imposed on the solitary evidence of the prosecutrix as her evidence inspires confidence. Aku Gazi and another Vs. The State and another, 2 LNJ (2013)-HCD-384. S. 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000-Cohabitation with consent obtained by deceitful means constitutes rape. It provides that if any male cohabits with any woman with her consent obtained by fraud by 'staging a drama of false marriage, he commits the offence of rape. The State V's. Md. Kamal Hossain, 2 ALR(2013)-AD-127. S. 9(1)-Manner of occurrence as alleged in the FIR is preposterous and suffers from infirmity and improbability. It is admitted that they lived together as husband and wife for six years. The consent of the victim was not obtained practicing fraud. Sexual intercourse was not an act of one day, but for six years. Such act do not constitute an offence of rape punishable under section 9(1) of the Ain. Golam Ahmed Vs. State, 64 DLR (2012)-HCD-93. S. 9(4)(kha)-Medical report submitted by the Medical Board pursuant to an order of the Court which is a vital evidence on the part of the prosecution to prove the case of injury inflected by the informant as her self defense and to save her from a heinous crime of rape. Abdul Haque Dakua Vs. State, 17 BLC (2012)-HCD-257. (37) S. 9(4)(kha)-The convicts were convicted under sections 9(4)(kha) of the Ain, which is very difficult to prove but the informants desperate act of causing injury made it easier to prove the offence under the provision of the Ain. Abdul Haque Dakua Vs. State, 17 BLC (2012)-HCD-257. S. 9(1) and 22-Abu Taher is the licentious father and Baby Akhtar, 8 years old daughter of Abu Taher, is the prey of salaciousness. The loathsome incident of ravishment came into being on 26-04-2002. Such truthful version unveiled in first information report stood proved by informant PW 1 during trial, statement of victim of crime recorded under section 22 of the Ain of 2000 which was well proved by PW 8.Magistrate, First Class, medical evidence furnished by PWs 18.09.10,21 and 22. Abu Taher Vs. State, 10 BLC (2005)-32. S. 9(1)-Cognizance of the offence has to be taken on police report not below the rank of Sub-Inspector. Code of Criminal Procedure,1898-Section 173-Police Report after completion of investigation. Cognizance of the offence under the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be taken of the police report not below the rank of Sub-Inspector of police as contemplated under section 27 of the Ain. This police report must be one submitted under section 173 of the Code of Criminal Procedure, 1898. Aminuddin (Md.) Vs. The State, 11 MLR (2006)-HCD-289. S. 9(1)-Offence of rape and punishment- Section 22-Confessional statement of accused or statement of the victim or witness- As provided under section 22 of the Ain of 2000 statement of victim or a witness shall be recorded under section 22 of the Ain and not under section 164 of the Code of Criminal Procedure.Statement recorded under section 164 Cr.P.C in case under the Ain shall be treated as one recorded under section 22 of the Ain, 2000. Md. Washim Mia and another Vs. The State, 9 MLR (2004)-HCD-162. S.9(1)-As regards first occurrence on 13.03.2001, she deposed that the gave consent to the accused to make sexual intercourse with her as he assured her to marry. Thereafter he used her very often. As regards the 2md occurrence on 10.09.2001 she deposed that when she went out response to natural call, then the accused abducted her and took her to open filed and committed rape. Thus we find a contradictory statement from the victim. It is not the prosecution case that during second time the relation between the accused and the victim was deteriorated and thus the question of abduction does not arise. Hence is appears to us that it is a concocted case. Monwar Mallik Vs. The State, 17 BLT (2009)-HCD-25. S. 9 (kha)-When a woman of 18 years of age voluntarily goes with a man and marries him at her own volition no offence is committed. In a case where the alleged woman of age 18 years of her own went with the accused and married him no offence under section 9(kha) of the Nari-O-Shishu Nirjatan (Bishes Bidan) Ain, 1995 is committed. The impugned conviction and sentence having found not been based on any legal evidence has been set-aside and the convict-appellant has been acquitted by the learned Judge of the High Court Division. Ahad Molla (Md.) Vs. The State, 11 MLR (2006)-HCD-99. S. 9(1)-The alleged victim's deposition in reply to cross-examination bore clear manifestation of her being a willing partner in regular intercourse with the appellant. The FIR and her examination in-chief do not mention that she ever resisted or attempted to resist the act of intercourse. She did not also raise any outcry. No offence of rape was therefore committed. Sohel Rana (Md.) Vs. State, 57 DLR-591. S. 9(1)-In this rape case victim did not sustain any injury on her face, cheeks or breasts at the time of commission of the alleged rape and the medical Board also did not detect any trace of sexual violence on her face, cheeks or breasts and also did not detect any trace of sexual violence the person of the victim. Thus we find no corroboration with the statement of prosecutrix. In the instant case, the prosecution has hopelessly failed to prove its case beyond all shadow of doubt. The learned trial court without considering the evidence on record erroneously convicted the accused appellant without observing any norms of law. Md. Khairul Vs. The State, 16 BLT (2008)-HCD-480. S. 9(1) and 22-The prosecutrix was examined as PW 2 and she fully corroborated her earlier statement recorded by the Magistrate under section 22 of the side Ain of 2000. All other witnesses also corroborated one another as to the commission of rape by the convict appellant. The evidence of doctor also corroborated the prosecution case. There is nothing to disbelieve the consistent evidence of the prosecution witnesses who are disinterested and independent. The prosecution has been able to prove the case beyond all reasonable doubt and hence the judgment and order of conviction and sentence passed by the learned Tribunal Judge is affirmed with slight modification as to the sentence. Suroj Ali (Md.) Vs. State, 10 BLC-292. S. 9(1)-Offence of rape-Delay in lodging complaint-Absence of medical examination-Victim habituated with sexual intercourse-a willing partner-No offence of rape is committed. There was inordinate delay in lodging the complaint. The victim was not examined by Medical Officer. The victim allowed the accused to cohabit with her on number of occasions and as such was a willing partner in the intercourse. The witness examined do not appear to be worthy credence. In view of the state of the evidence and prosecution story the learned Judge of the Supreme Court High Court Division held that the prosecution utterly failed to prove the charge beyond all reasonable doubt and set aside the impugned order of conviction and sentence of the convict appellant. Abdul Kader(Md.)V's. The State, 11 MLR (2006)-HCD-196. S. 7 and 9(1)-Offence of abduction and rape-Cr.P.C. S. 561A-Quashment of conviction and sentence-Inordinate delay in lodging the complaint without satisfactory explanation renders the prosecution case doubtful. In her statement recorded under section 164 Cr.P.C. the victim woman of 16/17 years of age stated that her marriage with the convict petitioner was solemnised in the office of the Nikah Registrar and they sowrn in an affidavit to that effect before the Notary Public.Moreover there was inordinate delay of 2.5 months in lodging the complaint after the occurrence without satisfactory examination which rendered the prosecution case doubtful. Medical report shows that the victim was habituated to sexual intercourse. The trial was held in the absence of the accused after the publication of proclamation in the local news paper and as such he was not aware of the trial and could not prefer appeal within the specified time. The learned Judges of the High Court Division having found conviction and sentence not based on legal evidence quashed the same. FirojChokeder Vs. The State, 11 MLR (2006)-HCD-115. S.9(1)-As regards first occurrence on 13.03.2001, she deposed that the gave consent to the accused to make sexual intercourse with her as he assured her to marry. Thereafter he used her very often. As regards the 2nd occurrence on 10.09.2001, she deposed that when she went out response to natural call, then the accused abducted her and took her to open field and committed rape. Thus we find a contradictory statement from the victim. It is not the prosecution case that during second time the relation between the accused and the victim was deteriorated and thus the question of abduction does not arise. Hence it appears to us that it is a concocted case. Monwar Mallik Vs. The State, 17 BLT (2009)-HCD-25. S.9(1)-Offence of rape-nature of proof required-When enmity exists between the parties-Corroboration by independent evidence is necessary- Prosecution is required to prove the charge by consistent and reliable evidence beyond all reasonable doubt in order to secure conviction. Conviction based on surmise and conjecture cannot be sustainable in the eye of law. Evidence of prosecutrix who is a grown up woman having husband and children needs to be corroborated by independent witness. When medical report does not support the allegation of rape, when there is enmity between the parties, when the independent neighboring witness are not examined and when the evidences of the P.W.s are sharply discrepant, the prosecution case becomes doubtful leading to the acquittal of the accused-appellant. Khairul (Md.) Vs. The State, 12 MLR-HCD-409. S.9(1)-Court should carefully examine the prosecution case as well as the defence version. If the defence put forward an abili on behalf of the accused which seems to be true, the accused is entitled to a verdict of benefit of doubt. There is a basic rule of Criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the view favourable to the accused. Considering the entire evidence it appears that the prosecution has totally failed to prove its case, moreso, the version put forward by the defence has a reasonable possibility of being true. Hence the accused is entitled to get benefit of doubt not as a matter of grace but as a matter of right. Khairul (Md.) Vs. State, 13 BLC-HCD-303. S.9(3) and 30-Charge of rape based on confessional statement of co-accused and other evidence held proved beyond doubt. Delay in lodging F.I.R. when duly explained held not fatal. The Appellate Division as well as the High Court Division held the confessional statements of the accused clearly inculpatory and the trial court was in serious error while terming the same exculpatory. The charges are also held to have been proved beyond all reasonable doubt and thereupon convicted and sentenced the convict-appellânts. Aminur Rahman and others Vs. Fatema Begum and the State, 13 MLR(2008)-AD-249. S. 9(3), 30-The victim herself has deposited before the tribunal narrating the incident of rape on her and also naming the rapists. This victim is an unmarried college student and comes of a respectable family. She has given testimony before the tribunal outraging her own modesty and honour which are dearest to an unmarried girl. We find no reason to disbelieve the testimony of this victim. Fatema Begum daughter of Azizer Rahman Vs. Aminour Rahman son Afser Ali & Ors, 25 BLD(2005)-HCD-342. See 11 MLR-HCD-23. S. 9(3)-In this case of gang rape committed by three fully grown up men resulting in the death of a helpless teen ager, and thereby smashing her person, her dream, her modesty, her dignity, her chastity being regarded as the invaluable and inviolable asset by any women, and when such a crime is committed by the convicts caring the least about the sanction provided for by the prevailing law and caring not at all about any social resistance as proved by their pre-plan and conduct, we are surprised to see as to why this case was not treated as a rarest of rare cases and death sentence was not imposed on these three rapists and on their accomplice. Rehana Begum Vs. State, 19 BLT (2011)-HCD-548. See 16 MLR-HCD-75. Ss. 7,9(1), 28 and 30-The informant herself appearing in the Court below filed an application that the matter in dispute has already compromised between them so she has no objection in respect of bail of the other co-accused. As the appeal in dispute between the parties have been compromised, so, to establish peace and tranquility in the society, the High Court Division was inclined to enlarge the appellant on bail. Tota Howlader (Md) Vs. State, 16 BLC (2011)-HCD-761. S. 9(1)-In the instant case, neither the date of occurrence nor the place of occurrence, manner of occurrence, place of salish, date and time of salish, violation of the order of salish and admission of guilt by accused have been proved by reasonable and believable testimonies it is to be held that although there is evidence but such evidence creates serious doubt in the mind of judges of the High Court Division which is treated as a case of no evidence. Abul Hashem Vs. State, 16 BLC (2011)-HCD-699. See 31 BLD (2011)-HCD-615. S. 9(1)-Examination and cross-examination, nowhere it has been stated that there is any resistance or any act of sexual intercourse. There is also no sign of violence as certificate issued by the doctor and all the witnesses categorically stayed that there was marriage in between the victim girl and the appellant. Zitu Ahsan Vs. State, 59 DLR-528. S. 9(1)-If after an examination of evidence, the Court is of opinion that there is reasonable possibility that the defence put forward by the accused might be true, such a view reacts on the whole prosecution case. In this circumstances the accused is entitled to benefit of doubt as a matter of right. See 5 DLR (FC) 107. Roni Ahmed Vs. State, 61 DLR-147. S. 9(1)-Allegation when does not constitute punishable offence- In the instant case the victim who is major in her age voluntarily with her free consent married the accused and they are living as husband and wife and out of her wedlock a baby has born. The victim was not examined during trial which makes the prosecution case doubtful. Moreover most of prosecution witnesses stated that the victim voluntarily went with the convict appellant and got themselves married. The learned judges of the High Court Division held the allegation do not constitute offence punishable under section 9(1) of the Ain and as such set aside the order of conviction and sentence. Roni Ahmed Liton@ Liton Ahmed Roni Vs. The State 14 MLR (2009)-HCD-412. S. 9(1)-The unfortunate mature girl mixed with appellant consciously at her own peril and this appellant though knew the fate of the victim girl, took that opportunity of free consent and mixing which does not fall within the purview of any legal action. Kamal Hossain Vs. State, 61 DLR-505. Rape-Rape is not merely a physical assault. It is destructive of the whole personality of the victim and the helpless female or girl. Rashida Akter (Shakhi) Vs. State, 18 BLC (2013)-HCD-639. S. 9(3)-Benefit of doubt.-It appears that the medical evidence does not disclose any ingredients of rape as the Board of Doctors found no mark of struggle in the bodies of the victims. If further appears that there is no evidence of recognition of accused Sagir at the time of occurrence alonngwith other five persons. There is no means of recognition and therefore it is highly doubtful that the appellant also participation in the occurrence, even if, it is believed that the victims were raped at 8.00 PM in a dark night. In such view of the matter we find substance in this appeal. Sagir Vs. State, 20 BLT (2012)-AD-91. S. 9(1)-Rule of corroboration is a Rule of Prudence and this Rule of Prudence must be present in the mind of Judge. There must be a satisfaction on the part of Judge that on the uncorroborated testimony of victim of sex crime it is safe to record conviction upon an accused indicated for an offence of rape. There must be an indication in course of judgment that the Judge had this Rule in his mind when he prepared judgment and if the Judge finds that there is no need for such corroboration he is to assign reasons for dispensing with the necessity for such corroboration. Safazuddin and another Vs. The Sta'e, 27 BLD-HCD-321. S. 9 read with clausé (Uma) and (Ta) of section 2-of the said Ain Intercourse with her-Nothing in evidence to indicate presence of any person in and around place of occurrence when incident took place-Testimony of victim consistent-And supported by evidence of her mother which is admissible as res gestae-Medical evidence showing no injuries unreliable as examination was incomplete-Plea that accused has been falsely implicated not substantiated from evidence on record-Conviction, proper. CrLJ (2016)-3455 (Cal) S. 9 Penal Code S. 376(2)(g)-Gang rape-Common intention-Allegations that when victim was returning from village, accused persons took her in auto-rickshaw and committed rape on her-Victim has named one of accused in FIR-Medical report discloses that victim had sustained injuries on her person and also on her private part. No material that other accused committed sexual assault on victim-But victim clearly stating thai both accused were together at time of incident and other accused was active participant-Held other accused was equally responsible for offence in as much as even though he has not committed rape-Conviction of both accused proper. CrLJ (2016)-3054 (Ori). S. 9 Penal Code S. 375. Rape-Proof-Evidence of doctor stated that vagina would easily admit two fingers-Deceased was thus, habitual to intercourse-Stains of semen were found on skirt (lehanga) of deceased and on under wear of accused-Clothes and blouse of deceased were found in torn condition-'Odani' of deceased was found to contain human blood. These facts were proved by attesting witness-Blood stained stones used for crushing head of victim were recovered from place of occurrence-Hair clips, ear tops and amulet (tabij) of deceased were also found lying nearby-Held that, chain of circumstances was so complete which points towards his guilt-Accused convicted. CrLJ (2016)-4686 (Raj) (G). S. 9 Penal Code S. 375-Rape-Absence of injury-Accused over-powered deceased while he committed rape on her-Due to this fact, she did not receive any injuries around her genital parts-This therefore, would not be factor to conclude that deceased was not subjected to rape. CrLJ (2016)-4686 (Raj) (F) Code of Criminal Procedure, Section 561A (1) Nari O-shishu Nirjaton Doman Ain 2000, Section 9Ka All three had a quarrel while sharing their morning tea. During that course, the appellant is said to have remarked for the deceased to go and die. The deceased went home in a dejected mode, whereafter he committed suicide. Supreme Court of India held that it can not he said that the suicide by the deceased was the direct result of the words uttered by the appellant. Accordingly, proceeding was quashed. similar view has been taken in the case of P. Srini Vasulu V.State,2004 Crl LJ 2718 (AP). In that case wife poured Kerosene over herself and set herself a fire because of abuses of accused husband. It was held that simple abuses ate not sufficient to provoke the victim to commit suicide.....(18) A.P.M. Sohrabuzzaman vs. The State represented (Hasan Foez Siddique J) (Criminal). 14 ADC (2017)-Page 84. Section 9Ka Penal Code S. 306-Abetment of suicide-Quashing of FIR-Suicide committed by Chief Investigating Officer pending investigation in murder case-FIR lodged against respondents for offence U/S. 306 IPC-Suicide note except saying that respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else-Allegations against respondents is vague -No prima facie case made out against respondents -Quashing FIR is proper. AIR (2015)-SC-3351. Section 9Ka Penal Code S. 306-Abetment of suicide-Sentence-Accused convicted u/Ss.498A and 306 for ill-treating his wife who committed suicide by hanging-Accused after marriage had secured employment in Gulf countries and used to visit India once in two years only -Accused had taken efforts for mediation to settle differences and though mediation was scheduled to take place on particular day but his wife committed suicide on same day - Thus, sentences imposed on appellant for offences u/Ss. 498A and 306, IPC are directed to run concurrently. AIR (2015)-SC-303(B). Section 9Ka Penal Code S. 306 -Abetment of suicide - Proof -Deceased in her dying declaration stating that she had consumed poisonous tablets by mistake - Same corroborated by doctor who had examined her- Accused mother-in-law though behaved stoically in beginning by calling act of deceased as "epileptic fit"-But as soon as she realized gravity of situation she called her son and they took her to hospital-On facts and circumstances, it is clear that her death was a result of an accident and she had mistakenly consumed poisonous tablet as same was kept with other medicines - Even though cruelty aspect meted on deceased has been proved beyond all reasonable doubt - It can-not be said that same had lead her to commit suicide or that accused had abetted in commission of suicide - Conviction of accused for offence punishable under S. 306 r. w.114, set aside. Cri. Appeal No. 101 of 2010, D/-23-2-2015 (Gujarat), partly Reversed. AIR (2015)-SC 3405 (B) Section 9Ka Penal Code S. 498-A-Cruelty and abetment of suicide -Proof-Deceased wife committed suicide on account of alleged cruelty committed by accused-husband and in-laws-There is no allegation of any kind of physical torture against accused-in-laws-Evidence on record against them with regard to cruelty is absolutely sketchy and not convincing - Fact that mother-in-law used to rob her money which she earned as wages not established-There is only one singular allegation against accused with whom husband was having illicit relationship that at public place she had threatened deceased that she would be divorced by her husband-Conviction, not proper. AIR (2015)-SC-2670 (B). Section 9Ka Penal Code S. 306 -Abetment of suicide-Proof-Deceased wife committed suicide on account of alleged cruelty committed by accused-husband and in-laws -There is no allegation of any kind of physical torture against accused-in-laws-Evidence on record against them with regard to cruelty is absolutely sketchy and not convincing -Fact that mother-in-law used to rob her money which she earned as wages not established-There is only one singular allegation against accused with whom husband was having illicit relationship that at public place she had threatened deceased that she would be divorced by her husband --Conviction, not Proper AIR(2015)-SC-2670 (B) Nari-o-Shishu Nirjatan Daman Ain (VIII of 2000) Section 9(ka) - Suicide and abetment-Uttering of abusive language will not amount to provocation to commit suicide and does not constitute abetment unless something more is done in pursuance of the said utterance of abuses. Dr APM Sohrabuzzaman vs State represented by the Deputy Commissioner Dhaka (Criminal 68 DLR (2016)-AD-33 Section Ka-The wilful act was done without the consent of the victim or against her will is totally irrelevant here since they are husband and wife. The phone call was between two consensual adults, i.e. married couple. Dr APM Sohrabuzzaman vs State represented by the Deputy Commissioner Dhaka (Criminal) 68 DLR (2016)-AD-331 Section Ka-Section 9Ka provides that, "নারীর সম্মতি ছাড়া বা ইচ্ছার বিরুদ্ধে সম্ভ্রমহানী" anticipated a non-consensual act of such a nature where there has been violation of modesty. The word modesty is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account for her sex. The word modesty has not been defined in the Am or in the Penal Code. Dr APM Sohrabuzzaman vs State represented by the Deputy Commissioner Dhaka (Criminal) 68 DLR (2016)-AD-331 Abetment of suicide-Proof-Allegation that deceased committed suicide due to harassment by husband and in-laws for non-fulfilment of demand of dowry-Material contradiction in testimony of father of deceased and contents of FIR.There is no corroborative evidence with regard to the dowry demands-Material showing that parents of deceased were happy with their daughter and son-in-law. Plea that deceased was beaten up by accused husband in morning of her death belied by post-mortem report. Delay of 9 days of Lodging FIR not explained satisfactorily-Acquittal, proper. CILJ (2016)-Del-559. Abetment of suicide and kidnapping-Appellant charged for offence under S. 306- Conviction for alternative charge under S. 302-Found vitiated-Appellants could not be convicted under S. 306 even it is presumed that said charge is established-Moreover they have suffered more than 8 years, imprisonment-So, also appellants cannot be convicted under S. 364, when charge was framed under S. 365-Sentence of appellants reduced to period already undergone. AIR (2016)-SC 2447 (B). ধর্ষণের ঘটনা ঘটার পর পরই অনেক আত্মীয় স্বজনকে জানানাে হইয়াছে সমর্থনের জন্য ইহা অপর্যাপ্ত। উক্ত ঘটনার বর্ণনা আত্মীয়-স্বজন, প্রতিবেশীকে এবং পরবর্তীতে কর্তৃপক্ষকে জানানাে হইলেও পর্যাপ্ত সমর্থন বলা যাইবে না। ১২ ডিএলআর (এসসি) ২৬৫ ইনকোয়ারী দেওয়া ঠিক নহে, (13) পুলিশ কনস্টেবলের বিরুদ্ধে যেখানে ধর্ষণের অভিযােগ আছে সেখানে উচ্চতর পুলিশ অফিসারের নিকট ৩২ ডিএলআর (১৯৮০)-২৯৮ (14) পরিস্থিতি বিবেচনায় হত্যার সাথে ধর্ষণের প্রমাণ মিলতে পারে। আসামীর লুঙ্গিতে বীর্যের চিহ্ন হইতে অনুমিত হয়া যায় ধর্ষণের পর হত্যা করা হইয়াছে, ১২ ডিএলআর (ডডিপি)-৩৪। (15) জখমের উপস্থিতি অথবা অনুপস্থিতি অবশ্যই অন্যান্য ঘটনার সাথে বিবেচনা করিতে হয়। স্ত্রী যােনিতে জখম হইলেই উহ আবশ্যকভাবে অথবা অপরিবর্তনীয়ভাবে প্রমাণ করে না যে, ধর্ষণ করা হইয়াছে। অপরপক্ষে, গুপ্তাঙ্গে কোন জখম না থাকিলে ইহা প্রমাণিত হয় না যে, বাদিনীকে ধর্ষণ করা হয় নাই। ঘটনা হইতে সহজেই ব্যাখ্যা করা যায় যে, অভিযোগকারীকে পূর্বে Intercourse করা হইয়াছে, ১৮ ডিএলআর (ডব্লিউপি)-৬৭। Abetment of suicide-Proof-Fact that deceased had been subjected to relentless and perennial mental trauma by husband and mother-in-law. Evident from perusal of suicide note and testimony of brother of deceased. There being close nexus between perpetration of cruelty and commission of suicide. It cannot be said that suicide by deceased not instigated and formented by accused. Accused convicted u/S. 306. CILJ (2016)-NOC-8 (HP) (B). Abetment of suicide-Proof-Suicide committed by pregnant wife in matrimonial home. Non-ascription of any incriminatory role of accused husband in suicide note. Testimonies of witnesses insufficient to command inference of cruelty by husband which instigated deceased to commit suicide. Apprehension that if deceased delivered female child she would be deprecated by family, is not founded on any pre-natal test- Acquittal, proper. CILJ (2016)-793 (HP). Abetment of suicide-Proof-Accused alleged to have received certain amount from deceased which was not returned and therefore deceased immolated himself- Acts of accused in not returning of amount does not amount to instigation by accused for committing suicide. Nor can it said that accused initially aided in any manner in commission of suicide to deceased. Order framing of charge against accused, set aside. CILJ (2016)-762 (MP). Abetment of suicide-Proof-Failure by prosecution to prove that wife was treated with cruelty by her husband and in laws. Body of wife found floating in lake. Evidence on record showing that wife was suffering from some mental disorder and she was taken to doctor by her parents without disclosing this fact to her husband or in-laws. Even if death of wife was accepted to be suicide still it cannot be attributed to cruelty by accused-Accused entitled to acquittal. CILJ (2016)-173 (BOM) (B) Abetment of suicide-Delayed FIR-In unnatural death of daughter, consequential shock and trauma suffered by parent of deceased is good ground for delay in filing FIR-Delay of only of 7 days in lodging FIR-Not fatal to case. CILJ (2016)-1758 (Cal) (A). Abetment of suicide-Presumption-Unnatural suicide death of wife in house of husband- Allegation that husband used to assult wife with fist and blows-Neighbour of accused specifically deposing that on night prior to incident of suicide, accused abused deceased by using filthy language, tortured her and deceased was found crying loudly-Presumption can be drawn that suicide has been abetted by husband. Conviction, proper. CrLJ (2016)-1758 (Cal) (B). Section 10 read with Penal Code (XLV OF 1860] Sections 143/448/385 and 506 A case which is not proved due to lack of evidence does not necessarily mean that it was false. The Appellate Division observed that it must be realized that there is an ocean of difference a being false and a one being not proved due to lack of evidence. A case which is not proved due to lack evidence does not necessarily mean that it was false. Moreover, the High Court Division has observed that on the selfsame matter the complainant petitioner obtained a money decree by way of compensation and there was no reason or satisfactory ground to admit the complainant's appeal and, accordingly, dismissed the appeal summarily. Appellate Division does not find any reason to interfere with the decision of the High Court Division. Accordingly, petition is dismissed. Md. Shibli Vs. Saima Sultana Hashi, 7ALR (2016)(1)-AD-96. S. 10 (1)-Penal Code Ss. 302 and 304-The offence of culpable homicide punishable under the Penal Code is cognizable by the Magistrate. The Magistrate did not take cognizance of the offence and did not send the case to the Court of Sessions under section 205C of the Code for trial. The Sessions Judge also took no cognizance of the offence under section 193 of the Code. The conviction under section 10(1) of the Ain cannot be converted to under section 302 of the Penal Code. There is no other alternative but to send the case to the Magistrate having jurisdiction to take cognizance of the offence to proceed with the case in accordance with law, treating it as a case of an offence of culpable homicide amounting to murder or not amounting to murder punishable under section 302 or 304 of the Code. State Vs. Md. Atiqur Rahman @ kamol. 17 BLC (2012)-HCD-630. S. 10-Sections 10(1) and 14 Code of Criminal Procedure, 1898 (V of 1898) Section 374-The Ain was promulgated to punish certain heinous offences against the children and woman through special Adalat established by it. If the murder were committed for dowry, only then such Adalat would have exclusive jurisdiction to try such offence. The motive for such offence will decide the jurisdiction of such Adalat. The moment, the Adalat finds no prof of existence of such notice of dowry, it must take its hands off. The State Vs. Osena Begum@ Babuler Ma & anr, 23 BLD (2003)-HCD-336. S. 10-Offence of sexual harassment- When prima facie truth of the allegations are not established during enquiry, complaint is liable to be dismissed-The learned Judges of the High Court Division held the dismissal of the complaint perfectly justified when no prima facie truth of the allegation of sexual harassment was established during enquiry. The Nari-O-Shishu Nirjatan Daman Tribunal cannot take cognizance of the offence under the Penal Code when no offence is disclosed under the Nari-O-Shishu Nirjatan Daman Ain, 2000. Ms. Ok Kyung Oh Vs. The State and others, 13 MLR (2008)-HCD-26. Sexual Harassment-A person can be liable for tort as well and damages may be claimed against him for such wrong doing as well as against an organization or establishment if it fails to ensure the prevention of sexual harassment and bullying to a woman, where she can work with honour and dignity and without being harassed or disturbed by her male boss or other male colleagues. British American Tobacco Bangladesh Co Ltd. Vs. Begum Shamsun Nahar 66 DLR (2014)-AD-80. S. 498-A-Cruelty and harassment-Credibility of evidence-Evidence of father of deceased regarding making payment appellants, accused-Cogent and consistent--Strengthened by bank statements.-Non-mention of details of money paid to appellants-And demand of dowry and cruelty and harassment meted out to deceased in statement of father-Does not affect credibility of father. AIR(2015)-SC-3043 (C). S. 498-A-Cruelty, to harassment-Testimony of related witness-Reliability-Brother of deceased allegedly went to matrimonial house of his sister-Saw appellant's mother-in-law, father in-law and husband of deceased scolding her for not bringing amount of Rs. 5,00,000/- Evidence of brother remained consistent throughout his cross-examination-Nothing substantial elicited to discredit his version- No doubt can be raised about his version. AIR (2015)-SC- 3043 (D). Nari-O-Shishu Nirjaton Damon Ain (VIII of 2000) Section 11(Ka) Accused given an opportunity of being heard to defend himself properly by cross examining the pws. The High Court Division is of the view that reason stated here in above, though a state defence lawyer was appointed at a belated stage to defend the absconding accused, but the said state defence lawyer did not serve the purpose of the instant case for which such appointment was made. Being so, person concerned must be i.e. accused given an opportunity of being heard to defend himself properly by cross examining the PWs. It is a sine qua non of the right of fair hearing of an absconding accused. The State Vs. Alam Malitha (Criminal) 9 ALR (2017) (1)-HCD-60. Section 11 Penal Code S. 304-8 -Dowry death-Credibility of evidence-Evidence of father of deceased regarding making payment to appellants, accused - Cogent and consistent -Strengthened by bank statements - Non-mention of details of money paid to appellants - And demand of dowry and cruelty and harassment meted out to deceased in statement of father -Does not affect credibility of father - When he himself was in agony due to death of his own daughter. AIR (2015)-SC-3043 (C). Section 11 Penal Code S. 304-B -Dowry death-Cruelty and harassment-Brother of deceased allegedly went to matrimonial house of his sister-law appellant's mother-in-law, father-in-law and husband of deceased scolding her for not bringing amount of Rs. 5,00,000/--Evidence of brother remained consistent throughout his cross-examination - Nothing substantial elicited to discredit his version - No doubt can be raised about his version. AIR (2015)-SC-3043 (D). Section 11 Penal Code S. 304-B - Dowry death-Alleged suicide note, not discovered during investigation but it was later produced by appellants, accused-Not proved to be in handwriting of deceased - Even assuming suicide note to be true, fact remains that death of deceased was unnatural - Thus contents of suicide note does not affect consistent version of father and brother of deceased. AIR(2015)-SC-3043 (F). (5) Section 11 Penal Code S. 304-8-Dowry death- Evidence -Inland letter allegedly written by person with whom deceased had love affair before marriage - Alleged blackmailing by that person-Plea that it was reason to commit suicide - Said letter not discovered during investigation -But produced by accused in bail application - It raises doubts about genuineness of said letter --Postal seal in letter, not clear -Possibility of letter being fabricated to create evidence to make possible defence cannot be ruled out - Rejection of said letter, proper. AIR (2015)-SC-3043(G). Section 11 Penal Code S. 304-8-Dowry death --Evidence -Letter allegedly written by deceased tò her brother-in-l Not recovered during investigation-But produced by accused along with bail application-Father of deceased denied letter in handwriting of deceased -No steps taken by accused to prove it-Plea by accused there were lapses on part of investigation which vitally affect prosecution case-Not tenable. AIR (2015)-SC- 3043 (H). Section 11 Penal Code S. 300 - Murder and gang rape-Death sentence-Accused, cab driver and his friend pick up deceased from her residence and took her to, secluded place and gang raped her and thereafter killed her by means of strangulation - Gruesome act of raping victim who had reposed her trust-Followed by cold-blooded and brutal murder of said victim-Coupled with remorseless conduct of accused-Shocks repulses collective conscience of community and courts - Absence of mitigating circumstancc-Case falls within category of rarest of rare cases-Death sentence confirmed. AIR (2015)-SC-2170 Section 11 Penal Code S. 304-8 - Dowry death - Accused husband not living with parents and brother -Stronger proof required to implicate family members of accused - Acquittal of father and brother of accused by HC-Would not entitle accused to be acquitted. AIR (2015)-SC-980 (D). Section 11 Penal Code S. 304-B - Dowry death - Cruelty "soon before death" -Wife committed suicide within one year's other marriage -It cannot be said that cruelty was not "soon before death. AIR (2015)-980 (E). Section 11 Penal Code S. 304-8-Dowry death -Demand for dowry and cruelty - Wife allegedly committed suicide within one year of marriage -No evidence to show that dowry demands were made prior to or at time of marriage - Contradiction between statements of prosecution witnesses about convening panchayat regarding dowry demands - Prosecution failed to prove or show deceased wife was treated with such cruelty, connected with dowry demands- Conviction, set aside. AIR (2015)-SC-980 (F). Section 11 Penal Code S. 304-B-Dowry death-Deceased died within 2.50 years of marriage otherwise under normal circumstances - There is no evidence as to demand of dowry or cruelty and that deceased was subjected to dowry harassment "soon before her death, Conviction of accused persons, not proper. Cri. Appeal No. S-1029-SB of 1998, D/-20-08-2010 (P&H High Court), Reversed. AIR (2015)-SC 2081. Section 11 Penal Code S.376(2)(g)-Gang rape-Death sentence-Accused, cab driver and his friend pick up deceased from her residence and took her to secluded place and gang raped her and thereafter killed her by means of strangulation-Gruesome act of raping victim who had reposed her trust- Followed by coldblooded and brutal murder of said victim - Coupled with remorseless conduct of accused'-Shocks repulses collective conscience of community and courts. Absence of mitigating circumstance - Case falls within category of rarest of rare cases - Death sentence confirmed. AIR (2015)-SC-2170. Sections 11(Kha) and 30 Merely signing the salishnama does not necessarily imply that the complainant admitted the allegation brought against her, The Appellate Division directed that the following paragraph be expunged from the judgement and order of the High Court Division: The trial court should have taken into consideration that the victim was not a person of good character particularly exhibit-X shows that she had an illicit connection with her brother-in-law (eo fw MoecwZ) which had been admitted by herself in putting her signature in a salishnama, accordingly petition was dismissed. সর্বশেষ আদালতে প্রমাণ না হওয়া পর্যন্ত অপবাদ দেয়া যাবে না। আপীল বিভাগ এই মর্মে নির্দেশ দিয়েছিলেন যে, হাইকোর্ট বিভাগের রায় ও আদেশ থেকে নিমোক্ত অনুচ্ছেদটি বাদ দেয়া হােক: উত্তম চরিত্রের লােক নয় বিশেষ করে প্রদর্শনী-১০ এর মধ্যে দেখা যায় যে, সে তার ভগ্নিপতির সঙ্গে একটা বেআইনী ও অনৈতিক সম্পর্ক গড়ে তুলেছিল সেটি সালিশনামায় সই স্বাক্ষরের মাধ্যমে সে নিজেই স্বীকার করেছে এবং তাই পিটিশনটি খারিজ করা হয়। The State Vs. Md. Rofizal Haque (Criminal) 7 ALR (2016)(1)-AD-24. S. 325-Voluntarily causing grievous hurt-Sentence -Conviction of accused u/S. 307 altered to one u/S. 325 --At time of incident accused were young-They have been dismissed from services and have also undergone about 17 months RI -On facts and circumstances, sentence of 3 years rigorous imprisonment would meet ends of justice. AIR (2015)-SC-3101 (B) S.325 - Voluntarily causing grievous hurt -Two lathi blows inflicted on head of injured by appellant -X-ray report showing that there was fracture of frontal bone of head of injured and there was callus--Fracture or dislocation of bone falls in category of grievous hurt-Having regard to nature of injuries and X-ray report --Conviction u/S. 325, proper. AIR (2015)-SC-3139 (A) S. 325 - Voluntarily causing grievous hurt -Sentence - Imposition of sentence is always matter of discretion of Court-Supreme Court cannot interfere unless discretion has been exercised arbitrarily or capriciously or on unsound principles - Considering fact that accused inflicted two lathi blows on victim in sudden fight and in fit of passion-Sentence of imprisonment of seven years reduced to three years. AIR (2015)-SC-3139 (B) Section 11 (ka) -In order to convict a person and to sentence him under clause (ka) of section 11, there must be evidence that a person so charged either caused death of a st attempted to cause death of a ‘নারী', Nurul Huda vs State (Criminal), 67 DLR (2015)-AD-231 Section 11(ka) The Nari-O-Shishu Nirjatan Daman Tribunal, Nilphamari (wrongly writ as Nari-O-Shishu Nirjatan Daman Bishesh Adalat, Nilphamari) by the judgment and order dated 16.03.2002 convicted the accused-appellant Anarul @ Anarul Hoq under Section 11(ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced him ..(5) Anarul @ Anarul Huq vs. The State (Md. Muzammel Hossain C)(Criminal) 12 ADC (2015)-Page 569 Section 11(ka) There is a fine distinction in the degree of bodily injury between `dangerous to life and likely to cause death. Another type of bodily injury, which is sufficient in the ordinary course of nature to cause death, is also to be recognised. However, the injuries which prove fatal remotely by inter-current disease, such as tetanus, and eryp sipelas should not be considered dangerous. Nurul Huda vs State (Criminal), 67 DLR (2015)-AD-231. Sections 11(Ga)/30 Code of Criminal Procedure, Section 265(c) The High Court Division came to a finding that admittedly the date of occurrence was on 05.09.2009 which was subsequently to the date of division and that the instant case was filed on 11.09.2009. Therefore, the High Court Division concluded that the order dated 18.01.2011 passed by the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal, Comilla, rejecting the application of the accused for discharge under section 265(C) of the Code of Criminal Procedure and framing of charge against them should be set aside. Rowshan Ara Begum vs. Md. Mizanur Rahman (Syed Mahmud Hossain J) (Criminal) 12 ADC (2015)-Page-96. It appears that the High Court Division, on consideration of the FIR., 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... (3) The State vs. Faridul Alam (Nazmun Ara Sultana J) (Criminal) 12 ADC (2015)-Page-98. Section 11(Kha)Naraji Petition-Narajee 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 (Criminal) 67 DLR (2015)-HCD-447. Section 11(ka)The Code of Criminal Procedure, Section 342 We find no reason not to put reliance on this postmortem examination report. The doctor who held post mortem examination on the dead body and prepared this report also has been examined by the prosecution as P.W. 14. This doctor witness also has deposed before the trial court to the effect that during postmortem examination he found some postmortem burns on the dead body and on dissection he found antimortem blood stain in the subcutaneous tissue to the anterolateral side of the neck and did not find any sing of inflammation in the burn area and that in his opinion the death was due to asphyxia as a result of throttling which was anti-mortem and homicidal in nature.. (7) Arifur Rahman vs. The State represented (Nazmun Ara Sultana J) (Criminal) 12 ADC (2015)-Page-156. ধারা ১১(খ) আইন এর মূল উদ্দেশ্যই হচ্ছে নারী ও শিশু নির্যাতন অপরাধ কঠোরভাবে দমন করা সেহেতু নির্যাতনের নুতন করিয়া ব্যাখ্যার কোন অবকাশ রাখে না। কেননা যে কোনভাবে শারীরিক বা মানসিক নির্যাতনের ফলে পরবর্তী যে অবস্থা দাড়ায় তাহা হইতেছে শারীরিক নির্যাতনের ফলে আঘাতপ্রাপ্ত বা জখমপ্রাপ্ত হওয়া এমনকি মৃত্যু ঘটিতে পারে। এইক্ষেত্রে আইন এর ১১ ধারায় সুস্পষ্টভাবে নির্যাতনের পূর্ব অবস্থা বর্ণিত না থাকিলেও পরবর্তী অবস্থায় যে প্রতিফল হয় যেমন জখম কিংবা মারাত্মক জখম কিংবা সাধারণ জখম তাহার সুস্পষ্টভাবে উল্লেখ আছে। আঘাতের ফলে জখম কিংবা নির্যাতনের ফলে জখম এই জখমের ভিন্নতর কোন সংজ্ঞা দেওয়ার অবকাশ নাই। আব্বাস উদ্দিন বনাম রাষ্ট (ফৌজদারী), ৫ এ. এল. আর (২০১৫)-এইচসিডি-৩৮৫. Section 11(Ka)-Demand of dowry from the side of husband or his family is the pre-condition to attract section 11(ka) of the Ain of 2000. The State Vs. A. Awal, (Criminal), 4 LNJ(2015)-HCD-190. Nari-O-Shishu Nirjaton Damon Ain (VIII of 2000) Section-11(ka)-Though, a discretion has been conferred upon the Court to award two types of sentences, death or imprisonment for life, the discretion is to be exercised in accordance with the fundamental principle of criminal justice. The State Vs. Nizam Uddin, (Criminal), 4 LNJ (2015)-HCD-351. Section 11(Ka)-If the death is caused for demand of dowry, it will come within the mischief of section 11(Ka) of the Ain. State vs Md. Golam Sarwar @ Ripon (Criminal), 67 DLR (2015)-HCD-407. Nari-O-Shishu Nirjatan Daman (Bishes Bidhan) Ain, 2000 (VIII of 2000) Section 11(ka)-When the wife met with her death while she was in the custody of her husband it is he who is to explain how she met with her death. A person who caused death of his wife life out of sheer greed has no right to live in this world. He has committed cold blooded murder of a simple village girl just because her parents and she had failed to meet his illegal demands. In sch a situation, the Tribunal has committed no illegality in passing the sentence of death. The State Vs. Khorshed Pesker (Criminal), 5 ALR (2015)-HCD-100. Sections 11(M)/30-Allegations that complainants' daughter married with accused No.1 and since marriage all the accused persons conjointiy used to torture his daughter for the cause of dowry-Held; The allegation of torture does not mean causing hurt. Thus the vague and unspecific allegation of torture made in the First Information Report/complaint does not attract an offence under Sections 11(M), 11(M)/30 of the Ain, 2000. Md.Samidul & Ors Vs. The State, 23 BLT (2015)-HCD-10. Section 11(Ga)-The High Court Division found that the incident of assault on the complainant is alleged to have occurred on 06.02.2009, whereas the accused husband claims to have divorced the complainant on 19.01.2009. The High Court Division observed that since the divorce took place earlier, the victim was not supposed to be present in the house of her husband after 19.01.2009. The State Vs. Md. Rofizal Haque (Criminal) 6 ALR (2015)-AD-90 Section 11(Kha)/30-The learned Nari-O-Shishu Nirjatan Daman Tribunal without framing charge discharged the accused Held:-The grounds taken for for discharge of accused are that on 11.08.2003 victim Lovely Akter was divorced by her accused husband Sultan and subsequently notice was served on 12.10.2003. It is well settled that the aforesaid documents are the subject matter of trial, such grounds are absolutely a disputed question of fact and the same should be decided at the time of trial. The plea of the accused for discharge 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 proceeding should not be stifled before trial when there is a primafacie case for going for trial. In view of such facts the grounds taken by the defence are not the correct exposition of law. On meticulous examination of the allegațion of the informant, charge sheet, impugned order and the grounds taken in the petition of the appeal, we are of the view that there are sufficient materials against the accused respondents for going for trial. In view of the above facts and circumstances of the case we are of the view that the learned Judge of the Tribunal committed error of law in discharging the accused from the case. Md. Taiob Ali Mollah Vs. Sultan & Anr, 22 BLT(2014)-HCD-88. S.11(Kha)-Cr.P.C.Sec.237- Conviction even without framing cgarge on a particular count. The accused may be convicted of the offence which was proved against him although no charge was framed. Ingredients of section 11(a) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 are very much present in this case against the appellant-petitioner and in view of the provision of section 237 of the Code of Criminal Procedure he may be convicted of the offence which was proved against him although no charge was framed under section 11(a) as the same offences are of cognate nature. Conviction of the appellant-petitioner under section 11(a) was rightly found to be in accordance with law. Md.Harun-ur-Rashid Vs. The State, 3 ALR (2014)-AD-104. S. 11(Kha) and 30-Ingredients necessary for framing charges. Penal Code, 1860 (XLV of 1860) Sections 313 and 315 All that is necessary at the stage framing of the charge is to see whether a prima facie case has been made out regarding the commission of certain offences or offence. The truth and effect of the evidence to be adduced at the trial cannot be judged at this stage. In the present case, the accused stands charged for the offence punishable under section 11(kha), 30 of the Ain, 2000, and cognizance has been taken thereunder. Since a prima facie case has clearly been made out to go for the trial, there is nothing wrong in framing the impugned charges. Ms. Morzina Khatun Vs. Saiful Islam Sarkar, 3 ALR (2014)-HCD-335. Dowry death-Deceased dying unnatural death in matrimonial home month after marriage-Demand for dowry and beating given to deceased-Spoken to by brother and mother of deceased-Fact that mother had failed to speak before police about beating given to deceased-Held was not sufficient to disbelieve her-Accused though claiming that deceased was heart patient and died natural death. Not examining doctor treating deceased to substantiate his explanation-Accused thus unable to rebut presumption under S. 113B-Conviction of accused proper. AIR (2013)-SC 2015 (A). Grievous hurt-Sentence-Appellants caused head injury on victim by lathi-Occurrence took place on account of dispute between parties over right to have drain in passage-No specific role assigned to any of five convicts-Three out of five convicts released on probation of good conduct mainly on consideration of their old age-Oarity claimed by remaining appellant on account of similar role assigned to all convicts is misconceived-Considering genesis of occurrence-Sentence reduced from five years to three years RI. AIR (2016)-SC-2710. Dowry death-Soon before her death-Means interval between cruelty and death should not be much-Live and proximate link between cruelty and death should exist. AIR (2013)-851 (A). Dowry death-Dowery death-Demand for dowry-Sewing-machine demanded by accused-Mother of deceased wife clarifying that it was gift to her daughter from them for tailoring clothes-Demand cannot be considered as demand made by husband for himself or his family members-Acquittal proper. SC AIR (2016)-SC-882(C). S.11(kha)-The allegation of torture does not mean causing hurt. The vague and unspecific allegation of torture made in the First Information Report does not attract an offence. Umme Kulsum@ Zinat Ara Vs. Shahidul Islam, 19 BLC (2014)-HCD-17. See 22 BLT(2014)-HCD-48. Ss.11(Ga) and 11(Ga)/30-The allegation of torture does nor mean causing hurt. Such vague and unspecific allegations of torture as made in the FIR/Complaint does not attract an offence under sections 11(Ga), 11(Ga)/30 of the Ain, 2000. The learned judge erroneously framed charge against the appellants cannot be sustained. Md. Samidul and others Vs. The State, 2 LNJ(2013)-HCD-312. S.11(Kha)-Considering the FIR and Naraji petition it appears that the allegation made therein are contradictory to each other. Moreso, the informant was divorced on 14.1.2002 by the accused and notices were duly served upon her. After giving divorce the question of demanding of dowry does not arise. The vague and unspecific allegation of torture made in the FIR does not attract an offence under section 11(Kha) of the Ain. So,the allegations made in the FIR, even if are taken as true, do not constitute an offence punishable under section 11(Kha) or 11(Kha)/30 of the Act. Most. Umme Kulsum @ Zinal Ara Vs. Shahidul and others, (Cri), 2 LNJ (2013)-HCD-235. S. 11(Ka)-From circumstantial evidence it has come to light that convict-appellant had caused the death of deceased and a clear case of murder had been brought home to the door of appellant. If section 11(ka) of the Ain of 2000 was not attracted in respect of convict-appellant the offence of section 302 of the Penal Code could be very much pressed into service against the convict-appellant, and he could be conveniently tried and convicted for offence of section 302 of the Penal Code. The State Vs. Sonowar Hossain Joarder, 2 LNJ (2013)-HCD-462. Ss.11(Ka)(Kha), 27 and 30-An abetment may be said to be committed by a person who, by his engagement or act or illegal omission, instigates any person to do a thing. Here,in the instant case,the accused No. 1, at the instance of accused-appellants, demanded dowry from the informant. For realization of dowry, accused No. 1 inflicted an iron-blow on the left side of head of informant; accused-appellant No.1 obstructed the informant from coming out of the room and accused-appellant No.2,by holding hair of the informant, pushed her towards the door from which the informant received hurt on her left side of forehead. Under the circumstances,the prosecution materials,reveal abetment of offences against the accused-appellants. Jahid Hassan and another Vs. The State and another, 1 LNJ (2012)-HCD-198. Section-11-S. 11(ka)-Penalty for causing death for dowry- The settled principle of law is that in a wife killing case when it is established that both the husband and the victim wife were residing on the same house at the relevant time, the husband is under the obligation to explain the circumstances under which his wife died. When the charge is proved beyond all reasonable doubt the sentence of death is held to be perfectly justified. State Vs. Md. Ainul Haque, 9 MLR (2004)-HCD-393. S.11(1)-The evidence of all the prosecution witnesses in respect of demanding dowry and causing death by the condemned prisoner while she was in the custody of her husband are consistent, uniform and corroborative with one another in all material particulars. The impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. The prosecution has successfully proved the charge against the condemned prisoner. The State Vs.Shahdat,1 LNJ(2012)-HCD-558. S.11(ga)/30-Code of Criminal Procedure (V of 1898), S. 342-It appears that at the time of examination under section 342 of the Code of Criminal Procedure the trial court failed to put the incriminating evidence against the convict-appeliants for the purpose of enabling them to explain the circumstance and thereby the convict-appellants have been highly prejudiced.There is no legal evidence to convict the appellants. The prosecution witnesses are almost family members of the victim. The learned Judge has not applied his Judicial mind in passing the order of conviction and sentence, as such, the same is liable to be set aside. Jharna Begum and others Vs. State, 1 LNJ (2012)-HCD-643. Same 32 BLD(2012)-HCD-542. S. 11(ka)-Jurisdiction over the subject matter is a condition precedent to the acquisition of authority over parties and if a court has no jurisdiction over the subject matter, consent of the parties cannot confer such jurisdiction and a judgment made without jurisdiction is absolutely null and void State Vs. Bahar Miah, 56 DLR-454. S． 11（Kha）／30-There is vague and unspecific allegation of torture. Mental or physical torture and causing hurt or injury 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(ka) 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 11(kha) or 11(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 and anr, 56 DLR-516. S. 11(ka)-The circumstances of the present case do from rosary and there is no missing link between one bead and another bead, chain of circumstances against condemned prisoner is so complete that it does not leave any reasonable doubt for a conclusion consistent with his innocence and on the other hand, it only points out that within all human probability it is condemned prisoner who is the perpetrator of crime who killed his wife. Hosna Nahar State Vs. Aminul Hoque, 9 BLC-529. S. 11(kha)-The testimony of PW 8 and PW 9 (medical witnesses) corroborated both the incidents. The learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Satkhira is justified in convicting and sentencing the accused-appellant under section 11(kha) of the Nari-O-Shishu Nirjatan Daman Ain,2000. Anisur Rahman (Md.) Vs. State,10 BLC 629. Ss. 11(ka) and 30-All that is required at the stage of framing charge is to see whether a prima facie case regarding commission of certain offence is made out. The truth,veracity and ffect of evidence which prosecution proposes to adduce at the trial is not to be meticulously judged at the stage of framing charge. In the instant case, the accused-appellants stand indicated for offence punishable under section 11(kha) of the Ain of 2000 and cognizance had been taken under that section. Tribunal framed charge against accused-appellants under section 11(kha) and 30 of the Ain of 2000. The offence punishable under section 11 (kha) and 30 of the Ain of 2000 has been clearly disclosed. Non-taking of cognizance against accused-appellants under section 30 of the Ain of 2000 cannot be a bar in framing charge under section 30 of the Ain of 2000. Abu Hanif (Md.) and another Vs. State, 7 BLC-549. S.11(ka)-Demand of dowry-PWs. 1,2 and 3 admittedly are relatives and they in mequivocal terms in their testimonies testified that after marriage demand of dowry of Taka 20,000/-had been put forth and there had been an agreement tired into between informant party and accused party in the way that Taka 10,000/- would be paid as dowry to Ainul Haque and out of that amount Taka 1,000/- had been paid in two installments and for payment of rest Taka 2,000/- time had been sought. Is also, came out from evidence of PW3 that PW2 Abdur Rashid constructed a house for Ainul Haque. PW4, though, had been declared hostile from prosecution yet in cross-examination it emerged from his testimony that he heard that uncle of Hosna Nahar constructed a house, for condemned prisoner. Demand of dowry, thus had been established by cogent evidence of PWs 1, 2 and 3. The State Vs. Md. Ainul Haque, 14 BLT-HCD-234. See 24 BCR-HCD-220. S. 11(kha)-Offence of causing hurt for dowry. When the allegation of causing hurt is not for any demand for dowry section 11(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 is not attracted. Delay in lodging F.I.R. When not satisfactorily explained casts doubt about the credibility of the prosecution case. Kishore Kumar Datta Vs. The State, 11 MLR (2006)-HCD-329. S. 11(kha)-Delayed lodged of F.I.R. truthfulness incident took place on 22.08.2001.It has been exposed to view from the testimony of PW1 that her brother on getting information on 23.08.2001 recovered her with police force from her father in law's house in injured condition and kept her in the house of her husband kindred elder brother Rabi Dutta (PW6). It also emerged from the testimony of Pwl that her brother (PW4) got her admitted in Commila Sadar Hospital on 24.08.2001 and treatment was provided to her. Information could be conveniently supplied to the Police Station by the brother of PWI on 23.08.2001 or 24.08.2001 when PW1 was allegedly recovered from the house of her father-in law. First Information Report could be laid with the Police Station on 24.08.2001 when PW1 was admitted into Comilla Sadar Hospital but no First Information Report was lodege after the incident. Curiously enough to note that First Information Report was lodged after a period of eight(8)days of the incident and it was registered with Police Station on 30.08.2001.Explanation offered in First Information Report for the delay caused cannot be characterized to be reasonable and acceptable explanation. Long delay in laying First Information Report was a serious doubt in the truthfulness of prosecution version and this delay pulverized the integrity of prosecution anecdote. Structure founded by prosecution in securing conviction and sentence upon convict-appellant collapsed. Kishore Kumar Dutta Vs. The State,15 BLT-HCD-174. S. 11(Ga) read with Cr.P.C, 1898; S. 561A-Allegation that in formant's Husband with the active help of the Petitioners (Husband's brother and Sister) assaulted on her with intent to cause her miscarriage which caused simple injury on her Person. After completing investigation Police recommending for discharging the present accused petitioner's from allegation as because during investigation police could not gather any sorts of tangible evidence to connect this petitioner's-Held: we are of the view that there is no clear evidence or legal basis to justify the order of taking cognizance so far it relates to the accused petitioners under Section 11(Ga) of the Nari-O-Shishu Nirjatan Daman Ain (Amendment) 2003 ignoring the police report under section 173 Cr.P.C. Rule is made absolute. Jannatul Ferdous@Kushum & Anr Vs. The State, 14 BLT-HCD-567. S.11(Ka)/30- In respect of demanded of dowry money In the instant case, Prosecution examined as many as 10 witness-Informant examined as PW1 who stated that on his dictation the police officer recorded the F.I.R. But P.W.2 in cross examination stated that he wrote the F.I.R. It is glaring contradiction in respect of lodging and writing of F.I.R. and that all the witnesses made contradictory and inconsistent statements to each other and this fact of payment of dowry money is not at all proved and further more in the four corners of this case it is absent that when this dower money was demanded or on whose presence it was demanded, so from all those given facts the prosecution has miserably failed to prove the fact of demand of dowry and payment of dowry. The State Vs. Md. Akinur Rahman@Akibul, 19 BLT (2011)-HCD-406 S.11(Ga)/30 Judges should remember that they are bound by law, not by emotion or any other extra judicial matters and Judges must keep themselves above the emotion, gender, caste and creed of the litigant public. (57)S.11(ka)/30 Hossain Md. Rajib Vs. The State, 31 BLD (2011)-HCD-368. The proposition of law is now well settled that on the basis of defence plea or materials a criminal proceeding should not be stifled before trial when there is a prima facie case for going for trial. Abdul Gaffar & Ors. Vs. The State, 31 BLD (2011)-HCD-564. S. 11(ka)-Offence of causing death for dowry-Husbands liability to explain how his wife met her death. Held: That the husband is under the liability to explain how his wife met with her death when the husband and the wife were living in the same house. But when it is not established that the husband was present in the same house at the time of occurrence the husband does not have the liability to explain as to how his wife met her death. When the characteristics of committing suicide are present and the post-mortem examination report is doubtful the High Court Division acquitted the condemned prisoner which the Appellate Division found nothing to interfere with. State Vs. Md. Sadequl Islam Tushar and others, BSCD (2010) Vol. 13 Page No.88. See 15 MLR (2010)AD-147. See 19 BLT (2011)-AD-160. Same 63 DLR(2011)-AD-134. Nari-O-Shishu Nirjatan Daman Ain, 2000-S. 11(A)-Cr.P.C.S.374-There is no legal evidence on record to hold that the accused demanded any dowry from the victim or from her relatives or that the accused assaulted the victim on the date of occurrence on demand of dowry. The post mortem report is not clear and it cannot be said that the victim died as a result of injuries found on her person rather the opinion of the Board that the death of the victim was due to combined effect of poisoning and injuries. Thus the accused is entitled to be benefit of doubt. State Vs. Md. Halim Howlader, 26 BLD (2006)-HCD-438. Code of Criminal Procedure, 1898 (V of 1898)-Section 237 Nari-O-Shishu Nirjatan Daman Ain, 2000 (XIII of 2000) Section 11(Kha)-Conviction even without framing charge on a particular count. The accused may be convicted of the offence which was proved against him although no charge was framed. Ingredients of section 11(a) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 are very much present in this case against the appellant-petitioner and in view of the provision of section 237 of the Code of Criminal Procedure he may be convicted of the offence which was proved against him although no charge was framed under section 11(a) as the same offences are of cognate nature. Conviction of the appellant-petitioner under section 11(a) was rightly found to be in accordance with law. Md Harun- ur-Rashid Vs. The State (Criminal),3 ALR(2014)-AD-104. Sections 11(Ga) and 30-Ad-interim bail by the High Court Division, Sessions Judge can not review the merit of the order of bail except misuse of the bail. When High Court Division assessed the merit of the case in granting bail, the Sessions Judge is not competent to re-assess the merit of the case. He can, of course, examine the question of misuse of the privilege of the bail by the accused. Hossain Md. Rajib Vs.The State, 4 ALR (2014)-HCD-70. Section 11(Ka)-Cold blooded murder The High Court Division considered the evidence of the prosecution witnesses and found that they uniformly deposed that the convict accused had demanded dowry and subsequently due to non-fulfilment of the said demand, the deceased while in the custody of her husband was done to death by her husband convict accused. Considering the facts and circumstances of the case, the High Court held that the trial court has rightly awarded the sentence of death. Such a person who caused death of his wife out of sheer greed has no right to live in this world. He has committed cold-blooded murder of a simple village girl just because her parents and she had failed to meet his illegal demands. In such a situation, the High Court Division is of the view that the Tribunal has committed no illegality in passing the sentence of death. The State Vs. Oliar Rahman, 4 ALR (2014)-HCD-16. Sections 11(kha) and 30-The learned Judge of the Tribunal without any specific observation rejected the narajee petition which is not passed in accordance with law. Therefore, High Court held that the impugned order suffers from legal infirmities and directed to make further enquiry into the allegations made in the naraji petition filed by the informat by the competent authority in accordance with law. Md. Phul Miah Vs. Abdul Ali, 4 ALR (2014)-HCD-139. S.9(1)/13-The victim PW 1 had regular sexual intercourse with the appellant at her will and it is not a case of rape as defined in section 9(1) of the Nari-O-Shishu Nirjatan Ain,2000 and section 375 of the Penal Code. In view of the above assertion of the prosecution witnesses, we have no hesitation to hold that PW 1 was a willing partner in regular intercourse with the convict-appellant. There is no iota of evidence that the appellant obtained the consent of PW 1 under threat or by practicing fraud upon her before such regular intercourse. It is evident from the evidence and materials on record that the victim is aged more than 17 years at the time of occurrence and as such rape does not construe as define in section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and section 375 of the Penal Code.The victim being aged more than 17 years has consented with regular intercourse with the appellant. It was also the prosecution case that the victim Naima Akter Tuhin PW 1, blessed a child and she claimed that it is the result of rape on her person committed by convict Nazmul Islam. To ascertain the said fact no DNA test was held and PW 2, cousin of the victim, PW 4, PW 6 and PW 11 in their respective cross-examination stated that they did not know whether convict Nazmul Islam alias Nazu is the father of the alleged child, blessed by the victim (para 27). In view of the above discussion we are of the view that the victim PW 1 had regular sexual intercourse with the appellant at her will and it is not a case of rape as defined in section 9(1) of the Nari-O-Shishu Nirjatan Ain, 2000 and section 375 of the Penal Code (Para28). In the case of Suhel Rana Vs.State, reported in 57 DLR 591, a Division Bench of the High Court Division held that;“An offence of rape is not a continuing offence. When the first occurrence of sexual intercourse was not one of rape, his subsequent acts of intercourse with her without resistance could not treated as rape” (para 29). Thus in the instant case the conviction against the appellant under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain is not sustainable in law and is liable to be set aside (para 30). Since the raped has not committed, then the appellant cannot also be liable under section 13 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (para 31). In the above mentioned case it has also held that- “The birth of a child was the result of an immoral act for which the victim was equally responsible. Ir was not any result of rape within the meaning of section 9(1) of the Ain, 2000, (para 32). For the sake of argument, if we hold that the birth of the alleged child is the outcome of the immoral act of the PW 1 and convict Nazmul Islam, no doubt it is a social crime and normally and ethically we cannot appreciate or including such kind of immoral act. But, it is the principle of Criminal jurisprudence that an accused should be dealt in accordance with law and before awarding any punishment a Judge should have considered the legal evidence and proposition of law and he will not act as a social activist,rather he should have guided by law giving up emotion. Further, a Judge is required to dispense justice in accordance with law and not according to his moral conviction. Nazmul Islam alias Nazu Vs. State, 63 DLR-460. Section-17-If the order rejecting a narajee petition passed without any specific observation then the same suffers from legal infirmities and as such further inquiry into the allegation is indispensable. Md. Phul Miah v. Abdul Ali & 8 Ors.35 BLD(2015)-HCD-276. Section 17-Appellate Division helds that before proceeding with a case of false complaint or information against the informant or complainant, it would be prudent for the Court or Tribunal concerned to examine the materials on record to assess the prima facie nature of the allegation. It would be a futile exercise to proceed against the complainant/informant of a case charging him with having lodged a false case if the allegation of a false case having been brought by the accused is ultimately not likely to be substantiated in Court. AK. Azad Vs. Md. Mostafizur Rahman (Criminal) 6 ALR (2015)-AD-44 (3) S.17(2)-Sub-section (2) of Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 authorises the Tribunal to take cognizance against of the offence of making a false complaint before it only on a written complaint by the aggrieved party and in such case procedures laid down in sections 200-203 are required to be complied with. In the absence of a written complaint before the Tribunal it has no power to allow the investigating officer to initiate a legal proceeding against the informant for making false allegations against the accused. Harabilash Mitra Vs. Sanjoy Biswas (Criminal), 2 ALR (2013)-HCD-154. S. 17-From the plain reading of sub-section (2) of section 17 it appears that Tribunal can take cognizance only upon a written complaint. Section 200-203 of the Code of Criminal Procedure laid down the provisions how a complaint has to be made and proceeded with it.The Tribunal in passing the impugned order giving approval to the investigating officer to initiate the proceeding against the informant for making false allegation having no written complaint before it by the competent person has acted illegally and beyond the scope of Section 17 of the Nari-O- Shishu Nirjatan Daman Ain,2000. Harabilash Mitra Vs. Sanjoy Biswas and another, 2 LNJ (2013)-HCD-97. S.17(1)-The word as used in the first portion of the sentence of sub-section (1) means the person namely the informant or complainant and subsequent words means the person against whom allegation had been made to cause his injury which found to be false after proper investigation. The aggrieved person is the only competent person to file a written complaint before the Tribunal. Harabilash Mitra Vs. Sanjoy Biswas, 64 DLR (2012)-HCD-343. Ss. 17(1) & 26-The Nari-O-Shishu Nirjatan Daman Ain does not empower the Tribunal to take cognizance against any person who has filed a false case or a complaint or got such a case or complaint filed by any other person, in the absence of any written complaint made by any person and the Tribunal has no authority to direct the Magistrate or any other person to file any such complaint to enable it to take such cognizance. Nurul Huq (Md) Vs. State, 55 DLR-588. S. 17(1)-In the instant case the Tribunal without examining the complainant on oath rejected the complaint petition and thereby failed to determine as to whether there is a prima facie case against the accused persons or not and without examining the complainant under section 200, CrPC the petition of complaint cannot be rejected in limine. Hence, the rejection of the petition of complaint of the present accused-petitioners dated 31-10-2010 is illegal. The direction given by the Tribunal to initiate the proceeding against the present petitioners under section 17(1) of Nari-O-Shishu Nirjatan Daman Ain, 2000 is also illegal as the Tribunal cannot give such direction. The impugned order is quashed and the Tribunal is directed to proceed with the Nari-O-Shishu Nirjatan Case No.523 of 2001 arising out of Kamar Kahand PS case No. 3 dated 16-01-2001 corresponding to GR Case No. 351 (Ga)/01 Zone Gha, Sirajganj in accordance with law. Abdul Majid Fakir Vs. State, 11 BLC-HCD-463. Ss.18 and 27-The Tribunal had the jurisdiction to take cognizance refusing to accept the FRT. It was not required to examine any witness under the law to determine the truth or falsity of the allegation. Abul Kashem Khan Vs.State,56 DLR-435. Nari-O-Shishu Nirjatan Daman Ain, 2000-S. 17(2)- Tribunal sending the complaint to the police station for investigation without examining the complainant-Nothing wrong is there- The Tribunal sent the complaint to the police station for investigation without examining the complainant under section 200 Cr.P.C the High Court Division held there was nothing wrong and discharged the rule which the apex court found perfectly justified. Afroza Jesmin Vs. The State 12 MLR (2007)-AD-303. S. 19 and 25-Application filed by the informant praying for considering the bail of the accused is of no consequence in law in granting or refusing the prayer for bail. Shahid Malongi (Md) and another Vs. State, 56 DLR-279. S. 19-Whether this case under the clutches of Nari-O-Shishu Nirjatan Daman Ain and if does not come under the purview of Nari-O-Shishu Nirjatan Daman Ain, the very initiation of the case under the said Ain and submission of charge sheet under the provisions of Nari-O-Shishu Nirjatan Daman Ain is illegal. Similarly the trial conducted by the Nari-O-Shishu Nirjatan Tribunal is without Jurisdiction. The fact of the informants case as it appears from the F.I.R. and the evidence produced by the prosecution is simple that on the fateful night, the condemned prisoner came to his father in-law's house and took away the deceased with him after taking dinner and the dead body of the deceased was detected in the brinjal orchard situated nearby the house of one Ayub Ali in the next morning. Although there is allegation that there was uproar over payment of dowry, which was agreed to be paid at the time of Solemnizing Marriage, but the prosecution hopelessly failed to prove aforesaid fact. No doubt that it is stated by the inmates of the house that there was a dispute over the demand of dowry and payment of dowry and the victim was taken away by her husband on the fateful night. These three things have been stated by the inmates of the house and relations of the deceased like a parrot. But the circumstance is that it appears from the charge sheet that the house of the father of the deceased and the house of her husband are situated side by side (Under lining done by me). It may be mentioned here that the charge sheet is not admissible in the evidence, but court may have impression from the charge sheet as it is the part of the record. We are obliged to note our concern to the mode of dispensation of justice system at the present position. The over night establishment of Nari-O-Shishu Nirjatan Daman Tribunal all over country and empowering the Judges who did not have any practical experience in holding trial involving capital sentence and the vesting of power of dealing with those type of cases had make them with imbalance and as a result we observe that number of conviction and imposing of death sentence has been increased and created an alarming position in our country. It is very much unprecedented which we have observed in long practice life in criminal side that now a days number of imposition of death sentence has been increased because those type of cases mainly the Nari-O-Shishu cases have been increased and it is being investigated by incompetent police officers and tried by judges having loss experience and the law itself is rampantly misued, which has been admitted even by the law makers publicly in many ocecsions. In such circumstances the courts must be more careful in dealing with the cases under Nari-O-Shishu Nirjatan Daman Ain. We are obliged to observe that Judges must be cautious in passing the judgment and order of conviction and sentence and they must remember that justice should not only be done but also appears to have been done and we once again reiterate that Judges must avoid the moral conviction,because the Judges of the lower courts are duty bound and we are oath bound for dispensation of justice in accordance with law-Relied on 26 BCR (AD)-240, the trial under Nari-O-Shishu Nirjatan Ain is illegal. The State Vs. Md.Akinur Rahman@Akibul, 19 BLT (2011)-HCD-406. S. 19(2)(3)-It is true that Nari-O-Shishu Nirjatan Daman Ain, 2000 is a special law and section 19(2)(3)thereof relates to the power of grmating bail by the Nari-O-Shishu Nirjatan Daman Tribunal alone but such power of granting bail by the Nari-O-Shishu Nirjatan Daman Tribunal alone but such power can only be exercised when the Investigating Officer submits police report in respect of any offence under the said Ain,2000 and the Tribunal takes cognizance under section 19(1) read with section 27 of the Ain, 2000. Prior to taking of cognizance by the Tribunal, the FIR case is treated as GR case for the simple reason that during investigation,it cannot be identified as Nari-O-Shishu case with certainty. If the GR case is ultimately found to be one under any of the provisions of the Penal Code or any other law not triable by the Tribunal,the disposal of bail application of the accused by the Nari-O-Shishu Nirjatan Daman Tribunal becomes without jurisdiction. Fajlur Rahman & Ors, Vs. State, 17 BLT-HCD-190. S. 19-To grant bail to an accused in non-bailable case is a discretion of the Court which should be exercised with due care and caution. The allegation against the accused appellant is that he alongwith other accused abducted victim Liza, a 14 year old girl against her will. Police after investigation submitted charge sheet. However the matter was subsequently compromised and the victim sworn in an affidavit to that effect. The learned Judges of the High Court Division held to grant bail to an accused in a non-bailable case is the discretion of the Court which should be exercised judiciously having regard to the facts and circumstances of each case. In the instant case since the dispute has been compromised between the parties, the learned Judges with a view to securing social peace and amity particularly among the parties, granted bail to the accused-appellant. Md. Tota Howlader Vs. State, 16 MLR-HCD-335. Ss. 19 & 25-Restrictions on granting bail to accused-Powers of the Tribunal or the Sessions Judge or the High Court Division are restricted under section 19 of the Ain and bail to the accused cannot be granted except on the grounds enumerated thereunder. Shahid Malongi and another Vs. The State, 9 MLR-HCD-173. Sections 19(2), (3) and (4)-The Tribunal is empowered to exercise its jurisdiction as the Court of original jurisdiction until the case is ready for trial and then as the Trial Court. The Officer-in-Charge of a police Station any other Police Officer making the arrest of an accused, the Investigating Officer or any other Officer empowered to investigate into the offences under the Ain is required by the Ain to forward the person arrested without any warrant or in execution of any warrant, or to send the information relating to the commission or suspicion of the commission of any offence under the Ain or to submit the investigation report, whatever it may be, through the G.R.O. directly to the concerned Tribunal and not to any other Court. Since the Tribunal has been bestowed upon the jurisdiction of the Court of original jurisdiction under the Ain, it is also empowered to deal with bail even before the case is ready for trial inasmuch as Section 19(2),(3) and (4) exclusively empower the Tribunal to deal with the bail under the Ain, which does not differentiate the bail as to the bail during the investigation into or the bail during the trial of the case. Md.Shahjahan Vs. The State, 4 ALR (2014)-HCD-172. S. 20–Held: We find that the present age of the victim-appellant is above 18(eighteen) years and that there is no cogent reason to keep her in judicial Custody any more against her will. Sumana Afroza Sumi Vs. The State & Anr, 16 BLT-HCD-291. যেহেতু নির্ধারিত সময়সীমার মধ্যে বিচার সম্পন্ন করিবার ব্যর্থতার ক্ষেত্রে উহার ফলাফল সম্পর্কে কিছু উলে-খ নেই সেইহেতু বিচারকার্য সম্পর্কে সময়সীমার বিধান নির্দেশনামূলক বাধ্যতামূলক নহে। হাবিবুর রহমান জাকির এবং অন্যান্য বনাম রাষ্ট্র-৪৯ ডি.এল.আর-৩৬৭. নির্ধারিত সময়সীমার মধ্যে বিচার নিস্পত্তি করিতে না পারিলে ফৌজদারী কার্যবিধির ৩৩৯ সি ধারার বিধান অনুযায়ী অভিযুক্তকে ট্রাইব্যুনাল জামিনে মুক্তি দিতে পারিবে। সােহেল বনাম রাষ্ট্র-৫ বিসি.আর-৬৫৮। অভিযুক্ত ষােল বৎসর বয়সের কম বয়সী হইলে ১৯৭৪ সনের শিশু আইনের অধীনে তাহার বিচার করিতে হইবে। শামীম (মােঃ) বনাম রাষ্ট্র-৫ এম.এল.আর-এইচসি- ষােল বৎসরের কম বয়সী অপরাধীর বিচার ১৯৭৪ সনের শিশু আইন-এ অনুষ্ঠিত হইবে। অন্য কোন আদালতে তাহার বিচার করার এখতিয়ার নেই হেতু উক্তরূপ বিচার অনুষ্ঠান এবং উহাতে প্রদত্ত দণ্ডাদেশ বেআইনি এবং অঢ়ল হইবে । এই ক্ষেত্রে অভিযুক্তের বয়স নির্ধারণের দায়িত্ব আদালতের উপর বর্তায়। মনির হােসেন (মােঃ) বনাম রাষ্ট্র-৬ এম.এল.আর (২০০১) এইচসি-২৭৫। ফৌজদারী কার্যবিধির ৩৪২ ধারার অধীন অভিযুক্তকে পরীক্ষার ক্ষেত্রে এই ধারার বিধান সমভাবে প্রযােজ্য। ৩৪২ ধারায় অভিযুক্তকে পরীক্ষা না করা হইলে বিচারকার্য ত্রুটিযুক্ত এবং অবৈধ হইবে। ৩০ ডি.এল.আর-৪২১। S.21-Trial in absentia. Under a special law, its trial and its all procedures should be continuing and concluded under the provisions of the special law. Following the requirements of section 21 of the Ain,2000 is sufficient fro trial in absentia. Md. Mohor Ali Vs. The State, 3 ALR (2014)-HCD-347. Nari-O-Shishu Nirjatan Daman Ain, 2000 (VIII of 2000) Section 22 /Gurdian and Wards Act, 1890 Section 25 read with Majority Act, 1875 The father is the well-wisher of his children and according to the Majority Act, 1875 one becomes major on attaining the age of 18 years. According to law father is the legal guardian of his children below 18 years of age and he is legally: his her custody. Whether the victim is a minor or major has to be determined by the Majority Act, 1875 and the question of custody must be determined in the light of the Majority Act, 1875 read with Guardians and Wards Act, 1890 coupled with the question of her wellbeing. [আইন অনুযায়ী আঠারাে বছরের নীচে শিশুর আইনগত অভিভাবক হচ্ছে বাবা এবং তিনি আইনগত তার হেফাজতে রাখার অধিকারী শিশুর হেফাজত নির্ধারণে শিশুর মাঙ্গলিক বিষয়ে প্রাধান্য দিতে হইবে। Sanjit Baidya Vs. The State (Criminal) 6 ALR (2015)(2)-HCD-211 ম্যাজিস্ট্রেট কর্তৃক ভিকটিম বা সাক্ষীর জবানবন্দি নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ধারা ২২ এর বিধানানুযায়ী লিপিবদ্ধ করিতে হইবে। এইরূপ ক্ষেত্রে ফৌজদারী কার্যবিধির ১৬৪ ধারা মােতাবেক লিপিবদ্ধকৃত জবানবন্দি নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ধারা ২২ এর অধীন রেকর্ডকৃত বলিয়া গণ্য হইবে। ওয়াছিম মিয়া (মােঃ) এবং অপর একজন বনাম রাষ্ট্র-৯ এম.এল.আর (২০০৪)-এইচসি-১৬২। S. 22;read with Code of Criminal Procedure, 1898; Section 164-Section 22 of the Ain 2000 is almost akin to section 164 of the Code of Criminal Procedure (Briefly The Code). Distinction which is marshaled is that in section 164 of the Code provision of recording confession along with statement has been supplied and in section 22 of the Ain of 2000 law of recording a confession had not been contributed. Abu Taher Vs. The State, 14 BLT-HCD-68. Nari-O-Shishu Nirjatan Daman Ain, 2000 S. 22, Cr.P.C-S.164,364-Section 164 of the Code makes provision for recording statement of witnesses or of an accused. Confession clearly refers to the statement of an accused person. Section 22 of Nari-O-Shishu Nirjatan Daman Ain 2000 makes provision for putting down statement of a person by a Magistrate, who is aware of the incident or himself witnessed commission of the offence.Section 22 of the Ain is almost akin to section 164 of the Code. Md. Wasim Mia and another Vs. The State, 23 BLD (2003)-HCD-621. S. 22 Statement recorded under section 22 by the Magistrate Ist class is admissible in evidence-Cr.P.C,1898; S. 164-Provides for recording statement of witness as well as confessional statement of accused-S. 154-First Information Report (FIR)-Evidentiary value of FIR has its importance as because it gives the account of the occurrence first in point of time and it lays the foundation of the prosecution case. Though not a substantive evidence its importance otherwise cannot be altogether ignored even if its author shifts his position being influenced by the accused. Abu Taher Vs. The State, 11 MLR-HCD-16. See 10 BLC-32. S. 22-The learned Judge of the Tribunal committed illegality in discharging the accused from the case without taking into consideration of the statement given by the victim under section 22 of Nari-O-Shishu Nirjatan Ain, 2000 when the prosecution materials disclose prima facie allegation of abduction and rape against the accused of the case. The impugned order of discharging the accused from the case was quashed. Anwara Begum Vs. State, 16 BLC (2011)-HCD-748. See 19 BLT (2011)-HCD-401. Ss. 22, 28 and 31-In the instant case it appears that the date of birth of the victim was 2-1-1993 as per Birth Certificate and Registration Card of the Board and that the victim was 15 years 8 months on the date of her abduction on 3-9-2008 meaning thereby the victim was a minor.The learned Magistrate considering the statement of the victim under section 22 of the Ain of 2000 sent her to the safe custody of Nari-O-Shishu Kishori Nirapad Hefazat Kendra,Farhadabad, Chittagong.The learned Judge of the Tribunal has rightly and legally passed the impugned order giving custody of the minor victim to her father, the informant which does not call for any interference by this Court. But the victim is unwilling to go in the custody of her parents. In such circumstances the victim appellant Suparna Rani Pal alias Jannatul Ferdous shall continue to remain in the safe custody of Mohila-O-Shishu Kishori Nirapad Hefazat Kendra,Farhadabad, Chittagong till her age is decided at the trial. Suparna Rani Pal Vs. State, 15 BLC (2010)-HCD-169. Same 19 BLT (2011)-HCD-470. Nari-o-Shishu Nirjatan Daman Ain Section 25-The word 'inquiry' appearing in section 27 (IKa) (Ka), in view of its special wordings, seems to differ, if at all, in degree from 'inquiry' within the scheme of the Code. An inquiry within the meaning of the Code, especially when follows a naraji petition, is generally an indoor activity of quasi judicial nature conducted by a Magistrate or Court that includes recording of oral evidence adduced by a handful of witnesses, in most cases selected by the informant, in order to examine whether there is prima facie materials to justify cognizance which has nothing to do with visiting place of occurrence, search, seizure, detection and tracking down accused, arrest, interrogation, collection of evidence on ground-level including expert opinion etc. as is done during investigation. Anjuara Khanam@Anju vs State (Criminal)(Full Bench); 68 DLR(2016)-HCD-466. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section-25 & 28-Informant as appellant challenging the impugned order,wherein accused are discharged from the charge in allegation under section 7/30 of the Nari-O-Shishu Nirjatan Daman Ain,2000 Held: It is pertinent to point out that accused Shahjahan also made confession recorded under Section 164 of the Code of Criminal Procedure implicating himself and the other accused in respect of abducting the victim Sarwar Hossain. Moreso the victim himself made statement recorded under Section 22 of the Ain 2000 wherein he stated that all the accused by deceitful means induced him to go from his home at Krishnapur to Parbatipur and all the accused compelled him to work in the hotel as a boy for about twelve days. All the witnesses in their staements recorded under Section 161 of the Code also narrated the manner of abduction by the accused-the proposition of law is 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-Appeal is allowed. Md. Azizar Rahman Munshi Vs. The State & Ors, 23 BLT (2015)-HCD-198 S. 25 and 27(1ka)(1ga)-Under section 25 of the Ain the provisions of the Code of Criminal Procedure shall be applicable subject to the provisions of the Nari-O-Shishu Nirjatan Daman Ain, 2000 the Tribunal may make cognizance of an offence if it is just and proper and in the interest of justice though there is no allegation of the commission of an offence or a recommendation for taking action against the accused persons in the report submitted by the police under sub-section (1) of section 27 and also by the Magistrate or any authorized person under sub-section (1ka) of section 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. From the aforesaid provisions it is abundantly clear that the Nari-O-Shishu Nirjatan Daman Tribunal is empowered to take cognizance of an offence against the accused-persons where the police submitted final report recommending discharge of the accused persons. Jamshed Akbar Latu@Jamshad Ali Vs. State, 12 BLC (2007)-HCD-351. S. 25,19-Section 5 of the Ain provides that in the matter of lodging complaint of any offence, investigation, trial and disposal, the provisions of the Code of Criminal Procedure shall apply. Though the tribunal and the High Court Division, on appeal if empowered to grant bail under the general provision of the Code, such power should be exercised subject to specific condition mentioned in section 19. Md. Shahid Malonji & anr. Vs. The State, 24 BLD(2004)-HCD-236. S. 26: The Nari-O-Shishu Nirjatan Daman Ain,2000 does not empower the tribunal created under section 26 to take cognizance against any person who has filled a false case, in the absence of any written complaint made by any person under sub-section (2) of the said section and the Tribunal has no authority to direct the Magistrate or any other person to file any such complaint to enable it to take such cognizance. Md. Nurul Huq Vs. The State, 23 BLD (2003)-HCD-300. Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended,2003); Section 27(1Kha)(Ka) Whether the complaint petition is sustainable in law Held; upon scrutiny, we find the police report expressly states that a prima facie case has been made out upon inquiry. In fact the police report also stated that the accused respondent even tried to put undue pressure upon the appellant to withdraw the case.In the 2nd last para of the polic "Therefore, under the facts and circumstances of the case we are of the considered view that when the complainant went to the police station to file a G.D. being No.840 dated 23.07.2015 he also intended to file a complaint but the concerned Thana as is evident from the complaint petition clearly advised the appellant to proceed to the trial court with the complaint. But the court below, without ever mulling over the facts and rather upon misinterpretation of facts and error of law wrongfully dismissed the complaint without affording him due process of law resulting in serious injustice. Md. Athar Bepari Vs. Rajib Sarder & Ors 25 BLT (2017)-HCD-96 Nari-O-Shishu Nirjatan Daman Ain (VIII of 2000) Section 2 The enquiry, report as mentioned in the judgment does not contain any proof that the complainant requested the policc officer or the empowered person to receive the complaint and failed as such, it is clear that there is no proof in support of this part of the requirement of law and as such, the Tribunal ought to have dismissed the complaint, but it without doing so took cognizance on the plea that there were prima-facie materials in support of the allegation against the accused, but that was not sufficient. The tribunal has to be satisfied that proof of both the requirements were available in the report. Thus taking cognizance of the offencc in the instant case was illegal. Umme Kulsum (Sweety) Vs. Md. Nazmul Islam and others, (Criminal), 5 LNJ(2016)(2)-AD-7. Section 27(1)(1Ka)(IKha)-A legal obligation created for the Tribunal to take recourse to 'inquiry' for collection of evidence without leaving option for investigation to put in place, in case it is needed.This means the Tribunal, which was supposed to be fortified by power more robust than usual, is relegated to a position weaker than that of a Magistrate who,in the circumstances, can direct the police to treat the complaint as first information report and investigate. Anjuara Khanam@Anju vs State, (Full Bench); 68 DLR(2016)-HCD-466. Nari-O-Shishu Nirjatan Daman Ain,2000 Section-27 Code of Criminal Procedure,1898 Section-200 Naraji petition, scope of, within the scheme of Section 27 of the Nari-o-Shishu Nirjatan Damon Ain,2000;-Whether examination u/s 200 of the Code of Criminal Procedure of complainant filing naraji in a Nari-O-Shishu Nirjatan case is mandatory; Ambit of power of the Tribunal u/s 27 of the Nari-O-Shishu Nirjatan Damon Ain, 2000; What is "investigation', difference between investigation and inquiry; Interpretation of statute. Mst.Anjuara Khanam Anju Vs. The State & Anr. 36 BLD (2016)-HCD-318 Nari-O Nirjatan Daman Ain, 2000 (VIII of2000) Section 27 (1- ka) read with Code of Criminal Procedure,1898 (V of 1898) Sections 200 and 173-The tribunal has discretion to assume cognisance even though the report was in the negative. Section 27(1Ga) confers wide discretion upon the tribunal in that it can assume cognisance even if the Police Report, as contemplated by Section 173 Cr.P.C, exonerates the accused. This discretionary power is surely meant to prevent abuse or bias by investigators, which are not uncommon. As the records reveal, the police in the case in hand transmitted a negative report ie a Final Report, and hence, under Section 27(1 ga) read with section 27(1),the tribunal had discretion to assume cognisance even though the report was in the negative. Md. Mokbul Hossain Molla V's The State (Cri.) 6 ALR(2015)(2)-HCD-196 Section 27(1)(Ga) read with Code of Criminal Procedure, 1898 (V of 1898) Section 265C-Before framing charge the petitioner came before the High Court by filing an application under section 561A CrPC for quashing the order of cognizance passed by the Nari-0-Shishu Nirjatan Daman Tribunal. The High Court Division held that the petitioner has scape and opportunity to agistate the matter by filing application u/s 265C of the CrPC before the tribunal and as such the application U/s 561A Cr.PC is not maintainable. Nepal@Nepal Chandra Saha Vs. The State, 5 ALR (2015)-HCD- 79. Section 27-Tribunal without complying with the stipulated provision of law i.e.without sending the matter for inquiry and without getting inquiry report directly took cognizance merely on the basis of the petition of complaint, as such, the very initiation and continuation of the proceedings is an abuse of the process of the court. Abdul Hamid (Ujir) vs State (Criminal), 67 DLR (2015)-HCD-154. S.27-Before taking cognizance, Nari-O-Shishu Nirjatan Daman Tribunal is not empowered by law to transmit the case record for trial to Druto Bicher Tribunal.Druto Bichar Tribunal is not empowered to take cognizance of the offence. Shaheen Vs. State, 59 DLR-HCD-23. S. 27(3)-If the offence under the Ain,2000 and those under the Penal Code were tried together then at the time of sentencing certain norms would have been followed. Sohel Rana Shippon (Md.) Vs. State 66 DLR (2014)-AD-160. S.27(1)(Ga)-Even if, the report, there is neither any complaint for the commission of an offence nor recommendation for taking action respect of such offence, against the accused persons, the Tribunal misconstrued the provisions of section 27 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and thereby committed an error of law in passing the impugned order,rejecting the inquiry report submitted by the Magistrate, 1st Class and directing the Additional District Magistrate, Sylhet for holding 'local inquiry” for the 2nd time though the Magistrate,1* Class held the enquiry as per provision of section 27 and that the aforesaid Ain does not provide for such inquiry for the 2nd time. M. Mominul Khan Vs. State, 58 DLR-HCD-253. S. 27, 27(1ka) and (1kha)-Jurisdiction of the Tribunal and its power to take cognizance Section 27(1)-The Tribunal shall not take cognizance of an offence except without a report by a Police officer not below the rank of sub-Inspector. S.27 (1kha)-If on receipt of the enquiry report the Tribunal does not find a prima facie case for trial, he shall dismiss the complaint as unsubstantiated. Babu Miah Vs. The State (Cri), 2 ALR (2013)-HCD-338. S.27(1Ga)-the Tribunal has no power to take cognizance just on the basis of a naraji petition. Babu Miah Vs. The State (Cri), 2 ALR (2013)-HCD-338. S. 27(1ka) and (ka)-When a naraji petition is filed by the aggrieved person the tribunal after examination ought to have sent the matter for further inquiry as per section 27(1ka) and (Ka) of the Ain, because naraji petition is fresh complaint. Babu Miah Vs. State, 18 BLC (2013)-HCD-598. S. 27-It does not appear from the aforesaid provisions of section 27 of the Ain that after submission of police report recommending discharge of the accused there was any scope for the informant to submit any naraji petition against such FRT. It however, conferred jurisdiction upon the Tribunal to take cognizance of an offence under the said Ain by stating grounds, even though FRT was submitted in favour of the accused. In the instant case before us, it is found, before acceptance of the FRT by the Tribunal or before its taking any action on it, the petitioner submitted a naraji petition containing allegations against the police to the effect that FRT was submitted without examination of any witness, while his victim son was not till then recovered. The learned Tribunal, we have mentioned earlier, had the jurisdiction to take cognizance refusing to accept the FRT. He was not required to examine any witness under the law to determine the truth of the allegation. So, it was beyond the scope of law for the Tribunal to examine such witnesses and record a finding on their statements towards accepting or refusing to accept the FRT. It had also the option, for ends of justice, to direct further investigation in terms of section 18 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 without undertaking any judicial inquiry by itself. Abul Kashem Vs.State,56 DLR-435 Para-8. S.27(1ka)(ka)-The expression “any person” in section 27(1ka)(ka),does not include any “police officer' but it includes any public officer or any private individual or any other responsible person of the society upon whom the Tribunal may have confidence to get the enquiry conducted in respect of the complaint lodged before the Tribunal and submit report within seven working days. Sirajul Islam Vs. State. 17 BLC (2012)-HCD-740. S.27(1Ka)(Ka)-The intention of the legislature as reflected in section 27(1Ka) (Ka) is to empower the tribunal to direct “any Magistrate” or “any person” excluding any police officer to enquire and report within 7 working days. The expression “any person” in section 27 (1 Ka)(Ka), according to our view, does not include any “police officer” but it includes any public officer or any private individual or any other responsible person of the society upon whom the tribunal may have confidence to get the enquiry conducted in respect of the complaint lodged before the tribunal and submit report within seven working days. Sirajul Islam Vs. The State and others, 1 ALR (2012)-HCD-162. S. 27 (3), 28-From a clear reading of Section 27(3) it is abundantly clear that if an offence under this Ain is connected with an offence under any other law in such a way that in the interest of justice it is necessary for both the offences to be tried together in the same case them the said offence shall be tried along with offence under this Ain in the same Tribunal in accordance with the provisions of the Ain. Md. Abdur RoufMoral Vs. The State, 28 BLD (2008)-HCD-357. S. 27(3): Unless any of the offence comes punishable under Nari-O-Shishu Nirjatan Daman Ain 2000 the learned Judge of the Tribunal has no jurisdiction to take cognizance of any other offence punishable under general law. Shamsunnahar Vs. State, 14 BLT-HCD-184. S. 27(3), 28-From a clear reading of Section 27(3) it is abundantly clear that if an offence under this Ain is connected with an offence under any other law in such a way that in the interest of justice it is necessary for both the offences to be tried together in the same case then the said offence shall be tried along with offence under this Ain in the same Tribunal in accordance with the provisions of the Ain. Md. Abdur RoufMoral V's. The State, 28 BLD (2008)-HCD-357. S.27-Though it is well settled that a naraji petition is a fresh complaint, the Tribunal had no jurisdiction to take cognizance of the offence under section 11(Ga)/30 of the Ain against the accused-appellants and another accused on the basis of the naraji petition as before filing of such naraji petition, treated as fresh complaint, the police officer did not refuse to accept the complaint being requested. The police officer recorded the case and after investigation submitted police report under section 173 of the Code of Criminal Procedure.The Tribunal did not take cognizance of the offence on the basis of that police report nor directed further investigation on the basis of naraji petition. Thus the Tribunal on receipt of naraji petition acted without jurisdiction directing enquiry to be held by the Magistrate and on receipt of enquiry report taking cognizance of the offence against three accused persons on the basis of naraji petition and enquiry report. In view of the matter under section 27 of the Ain the Tribunal had no jurisdiction to take cognizance of the offence on the basis of the naraji petition. Nakib AshrafAli & Anr Vs. The State & Anr, 17 BLT-HCD-370. S. 27-As provided under sub-section (1C) of section 27 of Nari-O-Shishu Nirjatan Daman Ain,2000, the Tribunal may take cognizance of an offence if prosecution materials disclose prima facie case against the accused of the case. However, submission of final report does not create any vested right nor any legal right in favour of the accused of the case and the same does not, ipso facto, entitle the accused to his discharge from the case. The accused may be prosecuted if the prosecution material discloses prima-facie offence against him. The Tribunal is empowered to take cognizance of the offence on examining the prosecution materials on record. Anwara Begum Vs.The State, 19 BLT-HCD-401. Nari-o-Shishu Nirjatan Daman Ain, 2000 (V of 2000) Section 28-Whether enlarged the convict on bail after he had suffered only seven months out of his sentence of 14 years imprisonment- The Appellate Division held that from the impugned order it appears that while granting bail the High Court Division considered the evidence and materials on record as well as the facts and circumstances of the case and exercised its discretion to grant bail to the respondent. The Appellate Division also considered the evidence and materials on record. In the facts and circumstances at the case the Appellate Division consider that the exercise of discretion calls for any interference by this Division. The State Vs.SM. Mizanur Rahman (Criminal) 5 ALR (2015)-AD-50. Section 28-Bail-In granting bail the Court should not be oblivious of the trend of rising similar nature of offences in the country. The exercise of power must be carefully balanced and weighed in the scale of justice. In such cases the Courts are bound to exercise their discretion judiciously with due care and caution because every erroneous decision is a miscarriage of justice and every miscarriage is derogatory to the common interest of the society. Therefore, it is necessary to exercise such discretion with some restraint. State vs Arman (Criminal), 67 DLR (2015)-AD-181. S. 28-The Tribunal concerned is directed to allow the victim Shilpi, the present appellant, to give evidence before the Tribunal as she appears to be a very witness of the case. Shilphi Vs. State, 59 DLR-HCD-539. S. 28-Mere mentioning of the words person aggrieved in an observation under paragraph-13 has no bearing or any manner of application in the issue either raised in MK Malaker's case or in the present case. The disagreement of the said Bench in MK Malake's case with the decision of Feroza Begum's case [40 DLR 161] was not in fact based on the ratio decidendi, or even obiter made, by the Appellate Division in Abdul Halim's case. In so far as such reliance on the Appellate Divison's ratio to disagree with the decision in Feroza Begum's Case is concerned, the decision in MK Malaker's case is per-incuriam. The decision in Feroza Begum's case, 40 DLR 161, is the correct proposition of law and the same is supported by the ratio emerged from the decision of the Appellate Division in Fazar Ali's case, 43 DLR (AD) 129. Shajeda Begum Vs. State, 19 BLC (2014)-HCD-294. S.28-Appeal for Bail-allegation under section 6(1)/7/10 of the Nari-O-Shishu Nirjatatan Daman Ain 2000 (as amended,2003) Gravity of the offence-We find that there is serious allegation against the appellant under section 6(1)/7/30 of the Nari-O-Shishu Nirjatan Ain and the learned Tribunal on proper and due consideration of the materials on record rightly took cognizance against the accused-appellant under section 6(1)/7/30 of the Nari-O-Shishu Nirjatan Daman Ain 2000 as amended 2003-the impugned judgment and Order passed in Nari-O-Shishu Nirjatan Daman Case is affirmed. Md. Rashel Ahkond Vs. The State & Anr (Criminal), 21 BLT (2013)-HCD-443. S. 28-Appeal arising out of the Order wherein prayer for bail was rejected. Allegation 6(1)/7/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000-appellant have been languishing for about 2 years in the jail. We find that there is serious allegation against the appellant under section 6(1)/7/30 of the Nari-O-Shishu Nirjatan Daman Ain. In view of the gravity of the offence and the materials on record we have no hesitation to accept the contention as raised by the learned Deputy Attorney General and find force in the submissions of the learned Deputy Attorney General appearing for the State Respondent opposite party. On the other hand we find no substance in the submissions of the learned Advocate appearing on behalf of the appellant and deserves no consideration. Appeal dismissed. Md. Rashel Ahkond Vs. The State & Anr, 20 BLT (2012)-HCD-551. S.28 Cr.PC Ss.1(2), 203-The Complainant without taking the recourse laid down in section 28 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 filed a fresh complaint being the instant case-Not permissible in the eye of law. The Nari-O-Shishu Nirjatan Daman Ain 2000 is undoubtedly a “Special law” A special Law means a law enacted to Special cases, in special circumstances in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. Thus Criminal Procedure Code is a general law, regulating the procedure for the trial of Criminal cases, generally, but if it lays down any bar in respect of special cases in special circumstances like those of Nari-O-Shishu Nirjatan Daman Ain, 2000, it will be special law contained within the general law. Mr.Ahmed Hossain and others Vs. Most Nasima Khatun and others, 9 LG (2012)-HCD-17. S. 28-The complainant without taking the recourse laid down in section 28 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, filed a fresh complaint being the instant case-Not permissible in the eye of law. Ahmed Hossain Vs. Nasima Khatun, 13 BLC (2008)-HCD-328. S. 28-Notwithstanding that a person may have a right to move before higher Court challenging legality of the order rejecting the prayer for releasing the victim girl to his custody, he could approach the High Court Division under section 491 of the Code of Criminal Procedure for a direction that his minor ward having been detained in judicial custody illegally or in an improper manner be made over to the custody of her natural guardian in the best interest of her welfare. Arun Karmaker Vs. State represented by the DC, Satkhira and another, 7 BLC-AD-61. S. 28-Appeal against acceptance of final report-Discussion of the I.O. with the Additional Deputy Commissioner is no evidence and as such proceeding can not be dropped on the basis thereof-When it appears that the Investigating Officer being influenced submitted final report in spite of medical evidence and that materials on record justifying no reason to submit final report the tribunal was also not justified in accepting the final report. The learned Judges of the High Court Division having found sufficient materials on record set aside the order accepting final report and directed the tribunal to take cognizance against the respondent. Shilpi Akter Vs. Md. Bacchu Mia and others, 11 MLR-HCD-118. S. 28-Propriety of the impugned Order, rejecting the application for bail-condition in granting bail. Allegation under Sections 11(ga)/30 of the Nari-O-Shishu Nirjatan Daman Ain,2003 (Amended 2003). It is evident that the learned Judge exercised her jurisdiction in rejecting the application for bail as salishder of a village. In series of decision of the apex court it is held that imposing of condition in granting bail is not sustainable in the eye of law. The learned Judge in rejecting the prayer for bail in this case has forgotten her basic principle that she is bound to dispense justice in accordance with law and a Judge cannot be a Arbitrator while dispensing justice. Unfortunately in the present case the bail prayer was rejected on the ground that the appellant did not compromise the case. The Judges has no duty to compromise any dispute in between the litigant public. But in this case which has been done by the learned Judge of the Tribunal comes under the definition of “Salishder” not under the definition of a Judge and the same is beyond the scope of law. Hossain Md. Rajib Vs. The State, 19 BLT (2011)-HCD-388. S. 28-In absence of independent evidence other than confessional statements of two co-accused against the appellant is entitled to be released on bail when he has been in custody since one and a half year. Subrata Majumder @ Liton Vs. State, 16 BLC (2011)-HCD-830. S. 28-It is contended on behalf of the appellant that some of the charge-sheeted witnesses were let-off from examination at the instance of the informant which seriously prejudiced the appellant. The appellant has ample opportunity to adduce those witnesses in his defence evidence. Shamsunnur Rahman Vs. State, 16 BLC (2011)-HCD-895. S.28-Appeal preferred by the victim being aggrieved by the order giving her custody to her father, the informant and refusing to go her in the custody of her alleged mother-in-law. The victim is unwilling to go in the custody of her parents. In such circumstances, the victim appellant shall continue to remain in the safe custody till her age is decided at the trial. Suparna Rani Pal Vs. The State & Ors, 19 BLT-HCD-470. S.28 read with Code of Criminal Procedure,1898, S.561A- Could not prefer criminal Appeal in time because as economic hardship. Maintainable-Though the order accepting final report and discharging the accused from the case is an appelable order, the petitioner could not prefer criminal appeal before this Court in time because of economic hardship. However, the petitioner taking help from Bangladesh Legal Aid and Services Trust (BLAST) filed this application under section 561A of the Code of Criminal Procedure and obtained this Rule. Rule is made absolute. Anwara Begum Vs. The State, 19 BLT-HCD-401. S. 30-The injury report issued by the Medical Officer and agreed and approved by the Medical Board, indicates several injuries on the body of the victim. The evidence thus produced is corroborative of the prosecution case of an attempt to rape the victim. Sections 22 and 23 of the Ain allow for the 164 statement and doctor are not witnesses in the case. In each of the two sections there is a proviso that conviction should not be based solely on such evidence. There is considerable support of the prosecution case by way of oral and documentary evidence, which is sufficient for the conviction of appellant. With regard to the complicity of appellant Akhi Begum, the evidence of PWs 1, 4 and 5 quite clearly does not implicate her in any way with the offence of the principal accused. Under Section 30 of the Ain, Akhi Begum could only be implicated if it could be shown by positive evidence that she had in some way instigated/encouraged the principal accused in committing the Act with which he is charged or in any way aided and abetted the actual offence of rape or attempt to rape. In the instant case none of the prosecution witnesses in any way indicate that the appellant Akhi Begum instigated or encouraged the principal accused to do the alleged Act or in any way assisted him during the commission of the offence. Kabir Hossain Vs. The State, 26 BLD (2006)-HCD-381. Ss. 5, 6 and 30-Penalty for trafficking women and children. The High Court after considering the submissions made by the learned Advocates of both the parties and perusing the petition under section 561A of the Code of Criminal Procedure and petition of appeal and the Jail Appeal and also the judgment and order, it is clear that the prosecution adduced as many as 19 witnesses including the victims namely Most. Salma, Most. Jesmin, Most, Parveen, Most. Fatema, Most. Romesa Khatun, Most. Fatema and Most. Shefali Khatun who deposed in the Court as P.Ws. and disclosed their agony after recovery when they were kept firstly in the house of Ahmed Ali then in the house of Mohammad Ali and thereafter in the house of Mohor Ali, and lastly in the house of the convict-Nazrul which is situated within 1 and 1.5 kilometers from the border between India and Bangladesh. From the above circumstances there is no doubt that these women collected and gathered by inducing to provide with a goods jobs. The prosecution adduced sufficient evidence to show that they were kept near border in order to traffic them to India in return of huge amount of money. Fortunately, the local people could realize the incidence and recovered the victim women from the area along with 4 convicts but some of the convicts could escape therefrom. In this regard it is clear that the offences under section 5,6 and section 30 of the Ain have been committed by the convicts. Md. Mohor Ali Vs. The State, 3 ALR(2014)-HCD-347. S. 31-Safe custody of the Victim Minor girl-One plain reading of section 31 discretionary authority of the Tribunal to pass an order to put any girl in safe custody outside jail in the custody of Government authority person or organization in course of trial of an offence under the Ain is intended to ensure safely, security and welfare of the girl, when Nari-O-Shishu Nirjatan Daman Tribunal by order dated 16.03.2006 directed for release minor girl Jannatun Noor Popy victim of an offence under the Ain and allowed custody of the minor to her mother no person or organization is authorized to question validity of the order under section 31 of the Ain. Mostafa Kamal Vs. The State, 14 BLT-HCD-364. (2)S.31-No person or organization can ask for safe custody of victim girl or child as of right unless such custody is assigned or given to it at the sole discretion of the Tribunal. Mostafa Kamal Vs. The State, 14 BLT-HCD-364. S. 31-Custody of Victim girl must be in her best interest-Opinion of the minor girl need not be taken into consideration while deciding her custody-Mother as her guardian is entitled to the custody of her minor daughter without attaching any condition to the release order depending on the consent of the minor. Mostafa Kamal Vs. The State,11 MLR-HCD-267. See 58 DLR-453. S.31-Custody of a victim girl. Allegation under section 7/30 of the Nari-O-Shishu Nirjatn Daman Ain, 2000 against the accused-Informant, father of the victim girl filed an application for custody of his daughter (victim girl) victim also filed an application to go to the custody of her mother-in-law and not to her father-Held; we are of the view that the learned Judge of the Tribunal has rightly and legally passed the impugned order giving custody of the minor victim to her father, the informant which does not call for any interference by this Court. The decision reported in 54 DLR 298 cited by the learned Advocate for the victim appellant is not applicable in the facts and circumstances of the instant case. Suparna Rani Pal Vs. The State & Ors, 19 BLT-HCD-470. S.31-Custody of victim girl-Proviso to clause (b) of section 58 of the Children Act, 1974 has overriding effect-On the basis of a television report on the sad plight of a seven year old girl who was raped the learned Judges feeling perturbed issued suo moto rule and called for the examination from the Magistrate concerned who directed the victim to be kept in the custody of safe home when she was produced for recording her statement under section 22 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. The victim was not given to the custody of her parents though they were willing and capable to take due care and protection of her. The Magistrate took the plea as no application was filed so he ordered to send the victim to custody of safe home. The learned Judges expressed serious concern about the lack of knowledge of the Magistrate about the law of custody of the victim and held that the filing of application is not the requirement of law. The Court must give the victim girl to the custody of her parent if they are willing and capable, no matter any application is filled or not. The learned Judges made serious of recommendations urging the Government to make necessary amendment or re-enact the laws relating to children in conformity with the UN Convention on the Rights of the Child (CRC) and to take adequate measures for imparting training to all concerned including the Magistrate and Judges. State Vs. The Secretary Ministry of Law Justice and Parliamentary Affairs and Others, 15 MLR-HCD-59. S. 31-Section 31 provides that of the Tribunal is of opinion that it is necessary to put any woman irrespective of her age or child in safe custody in course of trial it will be competent to direct to put such woman or child at any place selected for such purpose in the custody of the Government authority out side jail or in the custody of any person or organization considered to be proper in the opinion of the Tribunal in the facts and circumstances of the case. In the instant case the petitioner Merina Renu being still minor the tribunal has rightly ordered to give her in the custody of her mother. Merina Renu Vs. The State,14 BLT-HCD-177. Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 S. 6(1)-Charge of rape need to be proved by trustworthy evidence-Medical examination of the prosecutrix necessary- In trying and convicting an accused the tribunal must be cautious in scrutinizing the evidence in a manner so to be sure that innocentt person is not punished. In a case where there is enmity between the parties, the delay in lodging FIR, non-examination of the prosecutrix by medical officer, absence of marks of violence on the person of the victim and the conflicting evidence on material point render the prosecution story doubtful leading to the acquittal of the accused. Sobuj (Md.) Vs. The State 11 MLR (2006)-HCD-284. Nari-O-Shishu Nirjatan Daman Ain, 2000 (VIII of 2000) Section 34 The Appellate Division held that- (a) Sub-sections (2) and (4) of section 6 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sub-sections (2) and (3) of section 34 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and section 303 of the Penal Code are declared ultravires the Constitution. (b) Despite repeal of the Ain of 1995, the pending cases and pending appeals in respect of those offences shall be tried and heard in accordance with the provisions of the Ain of 1995, but the sentences prescribed in respect of similar nature of offences in the Ain of 2000 shall be applicable. (c) There shall be no mandatory sentence of death in respect of an offence of murder committed by an offender who is under a sentence of life imprisonment. Idris Sheikh Vs. Bangladesh (Civil), 6 ALR(2015)-AD-1. Section 6(1), 7 and 30 - Allegations made in the F.I.R not constituting offence and final report submitted by the I.0 – Allegations in the F.I.R do not constitute any offence. The Investing Officer submitted final report twice recommending discharge of the accused. The tribunal judge took cognizance on a naraji petition which the learned judges of the High Court Division found to be abuse of the process of the court and quashed the proceedings. Kamruzzaman Babul and others Vs. The State and another 13 MLR (2008) (HC) 68. Nari-0-Shishu Nirjatan Daman Ain, 2000 Sections 7 and 9 -Charge has to be proved by consistent evidence-Delay in lodging FIR when not satisfactorily explained renders prosecution case doubtful. In the instant case no witness is examined by the prosecution regarding kidnapping and recovery of the victim girl. The Medical officer found no evidence of rape on the victim. The learned judges held the conviction and sentence based on mere surmise and conjecture and as such acquitted the convict-appellants. Kazi Nurunnabi Parag and others Vs. The State 15 MLR (.2010) (HC) 84. Nari-0-Shishu Nirjatan Daman Ain, 2000 Section 7 and 9(1) - Offence of abduction and rape Code of Criminal Procedure, 1898 Section 561A - Quashment of conviction and sentence - Inordinate delay in lodging the complaint without satisfactory explanation renders the prosecution case doubtful. In her statement recorded under section 164 of Cr.P.C. the victim woman is 16/17 years of age stated that her marriage with the convict petitioner was solemnized in the office of the Nikah Registrar and they sown in an affidavit to that effect before the Notary Public. Moreover there was inordinate delay of 2½ months in lodging the complaint after the occurrence without satisfactory explanation which rendered the prosecution case doubtful. Medical report shows that the victim was habituated to sexual intercourse. The trial was held in the absence of the accused after the publication of proclamation in the local news paper and as such he was not aware of the trial and could not prefer appeal within the specified time. The learned judges of the High Court Division having found the conviction and sentence not based on legal evidence quashed the same. Firoz Chokder Vs. The State 11 MLR (2006) (HC) 115. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 7/30 - Custody of the victim girl when she is above 18 years - S.S.C certificate is held to be a valid document as to determination of age of the victim. As per the S.S.C certificate the victim is above 18 years and is a major. She is not willing to go to the custody of her parents. She voluntarily married the accused and embraced Islam. When she expressed to be released on her own bond, the learned judge of the Nari-OShishu Nirjatan Daman Tribunal, allowed her to be released from judicial custody on her own bond. The learned judges of the High Court Division found the impugned order perfectly justified. Nirmal Das Vs. State and another 13 MLR (2008) (HC) 386. Nari-O-Shishu Nirjatan Daman Ain, 2000 Sections 7 and 3D - Abduction of a minor girl for the purpose of marrying The learned judges of the High Court Division found from the S.S.C registration card and testimonial issued by the school authority, the victim girl minor and further held her consent to the alleged marriage of no value in the eye of law. They further held that the accused respondents abetted the offence by keeping the victim in illegal confinement and as such set aside the impugned order of discharge. Delwar Hossain vs. The Stall and others 13 MLR (2008) (HC) 258. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 7 and 30 - Allegation made in the F.I.R and Naraji petition when does not disclose any offence the proceedings started thereon are liable to be quashed. The victim made statement under section 22 of the act wherein she stated that she is major and she married the accused voluntarily and they are living together as husband and wife. The police submitted final report. The proceedings are drawn on the allegation of Naraji Petition which does not constitute any offence punishable under the act. Therefore the learned judges of the High Court Division held the proceedings abuse of the process of the court and as such quashed the same. Afshar Ali Vs. The State and another 14 MLR (2009) (HC) 369. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 9(1) - Allegation when does not constitute punishable offence In the instant case the victim who is major in her age voluntarily with her free consent married the accused and they are living as husband and wife and out of their wedlock a baby was born. The victim was not examined during trial which makes the prosecution case doubtful. Moreover most of prosecution witnesses stated that the victim voluntarily went with the convict appellant and got them married. The learned judges of the High Court Division held the allegations do not constitute offence punishable under section 9(1) of the Act and as such set-aside the order of conviction and sentence. Roni Ahmed Liton @ Liton Ahmed Roni Vs. The State 14 MLR (2009) (HC) 412. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 9(1) - Offence of rape - Delay in lodging complaint - Absence of medical examination - Victim habituated with sexual intercourse - a willing partner – No offence of rape is committed - There was inordinate delay in lodging the complaint. The victim was not examined by Medical officer. Victim allowed the accused to cohabit with her on number of occasions and as such was a willing partner in the intercourse. The witness examined do not appear to be worthy of credence. In view of the state of the evidence and prosecution story the learned judge of the High Court Division held that the prosecution utterly failed to prove the charge beyond all reasonable doubt and set-aside the impugned order of conviction and sentence of the convict appellant. Abdul Kader (Md.) Vs. The State 11 MLR (2006) (HC) 196. Nari-o-Shishu Nirjatan Daman Ain, 2000 Section 9(1) - Cognizance of the offence has to be taken on police report not below the rank of Sub-Inspector Code of Criminal Procedure, 1898 Section 173 - Police report after completion of investigation Cognizance of the offence under the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be taken on the police report not below the rank of Sub-Inspector of police as contemplated under section 27 of the Ain. This police report must be one submitted under section 173 of the Code of Criminal Procedure, 1898. Aminuddin (Md.) Vs. The State 11 MLR (2006) (HC) 289. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 9(1)- Offence of rape - nature of proof required when enmity exists between the parties - Corroboration by independent evidence is necessary. Prosecution is required to prove the charge by consistent and reliable evidence beyond all reasonable doubt in Order to secure conviction. Conviction based on surmise and conjecture cannot be sustainable in the eye of law. Evidence of prosecutrix who is a grown up woman having husbanded and children needs to be corroborated by independent witness. When medical report does not support the allegation of rape, when there is enmity between the parties, when the independent neighboring witness are not examined and when the evidences of the P.W.S are sharply discrepant, the prosecution case becomes doubtful leading to the acquittal of the accused appellant. Khairul (Md.) Vs. The State 12 MLR (2007) (HC) 409. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 9(3) - Evidence of the prosecutrix, an unmarried college girl when inspires confidence can form the sole basis of conviction. The evidence of the victim who is an unmarried college girl coming from a respectable family having been found trustworthy and sufficiently corroborated by other naural evidence, the learned judges of the High Court Division set aside the order of acquittal and sentenced the accused for the offence under section 9(3) of the Act of 2000 in appeal. Fatema Begum Vs. Aminur Rahman and others 11 MLR (2006) (HC) 23. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 9(3) and 30 - Charge of rape based on confessional statement of co-accused and other evidence held proved beyond doubt. The Appellate Division as well as the High Court Division held the confessional statements of the accused clearly inculcator and the trial court was in serious error while terming the same exculpatory. The charges are also held to have been proved beyond all reasonable doubt and thereupon convicted and sentenced the convict- appellants. Aminur Rahman and others Vs. Fatema Beguni and the state 13 MLR (2008) (AD) 249. Nari-O-Shishu Nirjatan Daman, 2000 Section 10 - Offence of sexual harassment - when prima facie truth of the allegations are not established during enquiry, complaint is liable to be dismissed. The learned judges of the High Court Division held the dismissal of the complaint perfectly justified when no prima facie truth of the allegation of sexual harassment was established during enquiry. The Nari-O-Shishu Nirjatan Daman Tribunal cannot take cognizance of the offence under the Penal Code when no offence is disclosed under the Nari-O-Shishu Nirjatan Daman Ain, 2000. Ms. Ok Kyung Oh Vs. The State and others 13 MLR (2008) (HC) 26. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 11(ka) - Offence of causing death for dowry - Husband liable to explain how his wife met her death. Law is well settled that the husband is under the liability to explain how his wife met with her death when the husband and the wife were living in the same house. But when it is not established that the husband was present in the same house at the time of occurrence, the husband does not have the liability to explain as to how his wife met her death. When the symptoms of committing suicide are present and the postmortem examination report is doubtful, the High Court Division acquitted the condemned prisoner which the Appellate Division found nothing to interfere with. State Vs. Md. Sadequl islam Tushar and others 15 MLR (2010) (AD) 147. Nari-O-Shsihu Nirjatan Daman Ain, 2000 Section 11(Kha) - Offence of causing hurt for dowry When the allegation of causing hurt is not for any demand for dowry, section 11(Kha) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 is not attracted. Delay in lodging F.I.R. when not satisfactorily explained casts doubt about the credibility of the prosecution case. Kishore Kumar Datta Vs. The State 11 MLR (2006) (HC) 329. Nari-O-Shishu Nirjatan Daman Ain, 2000 Sections 11(Ga) and 30 - Offence of causing hurt to wife for dowry When no injury is caused to the wife and the occurrence takes place elsewhere in which the relatives of the wife are assaulted by the accused in demand for dowry, the allegations do not constitute offence punishable under section 11(Ga) read with section 30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. Having regard to the position Of law the learned judges of the High Court Division set aside the impugned order of taking cognizance under section 11(Ga) and 30 of the Ain and directed the Chief Judicial Magistrate, Bagerhat to proceed with the trial of the offence under the Penal Code. Nakib Ashraf Ali and another Vs. The State and another 14 MLR (2009) (HC) 286. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 17(2) - Tribunal sending the complaint to the police station for investigation without examining the complainant - nothing wrong is there. The tribunal sent the complaint to the police station for investigation without examining the complainant under section 200 Cr.P.C. The High Court Division held there was nothing wrong and discharged the rule which the apex court found perfectly justified. Afroza Jesmin Vs. the State 12 MLR (2007) (AD) 303. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 22 - Statement recorded u/s 22 by the Magistrate 1st class is admissible in evidence. Code of Criminal Procedure, 1898 Section 164 - Provides for recording statement of witness as well as confessional statement of accused Section 154 - First Information Report (FIR) Evidentiary value FIR has its importance as because it gives the account of the occurrence first in point of time and it lays the foundation of the prosecution case. Though not a substantive evidence its importance otherwise cannot be altogether ignored even if its author shifts his position being influenced by the accused. Abu Taher Vs. The State 11 MLR (2006) (HC) 16. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 28- Appeal against acceptance of final report - Discussion of the I.0. with the Additional Deputy Commissioner is no evidence and as such proceeding cannot be dropped on the basis thereof. When it appears that the Investigating officer being influenced submitted final report in spite of medical evidence and other materials on record justifying no reason to submit final report, the tribunal was also not justified in accepting the final report. The learned judges of the High Court Division having found sufficient materials on record, set-aside the order accepting final report and directed the tribunal to take cognizance against the respondent. Shilpi Akter Vs. Md. Bacchu Mia and others 11 MLR (2006) (HC) 118. Nari-O-Shishu Nirjatan Daman Ain, 2000 Section 31- Custody of victim girl must be in her best interest. Opinion of the minor girl need not be taken into consideration while deciding her custody. Mother as her guardian is entitled to the custody of her minor daughter without attaching any condition to the release order depending on the consent of the minor. Mostafa Kamal and others Vs. The State 11 MLR (2006) (HC) 267. Attempt to abduct had not been made an offence under The Ain of 2000. Trisha was lot abducted. Examination of Judicial confessional statements signifies that convict-appellants had intention to abduct Trisha. Since attempt to abduct has not been shaped an offence in The Ain of 2000 the question of commandeering of Jurisdiction by Nari-O-Shishu Nirjatan Daman Tribunal did not and does not at all arise. The State Vs Mehdi Hasan @ Modern & Ors. 13 BLT (HCD)-151 Section 9(1) Story of Rape In the instant case, the doctor P. W. 8 having failed to carry on radiological /chemical lamination to ascertain the rape and mere rupture of hymen the informant-victim in absence of any mark of injury on her body, as she was supposed to obstruct the accused-appellant during the occurrence, justify our findings that the rupture of hymen is not the proper proof in holding that there was rape in this particular case inasmuch as the facts and circumstances as well as the behavior and practice followed by the doctor— P. W. 8 in determining the rape without doing any radiological/ pathological examination followed by absence of chemical examination of wearing apparels of the informant -victim which she was wearing at the time of occurrence clearly justify that the story of rape so brought on is a motivated one inasmuch as it appears from the evidence on record that the father of the informant-victim is not a good man and admittedly 'Ganja' is often taken in his house wherein P.W.2 Bibek and other villagers shares. Suren Bairagi Vs. The State 13 BLT (HCD) 483 Section -11 (Ka) read with Penal Code, 1860 Section -302 Whether the convict appellant can be graced with a verdict of acquittal when charge of section 11 (ka) of the Ain of 2000 could not be pressed into service against them The case in hand, although, tried by a Tribunal constituted under The Ain of 2000 that Tribunal was, also, the Court of Sessions. In the Judgment learned Judge was described as District and Sessions Judge, Kustia as well as Nari-O.Shishu Nirjatan Daman, Bishesh Adalat, Kushtia. Judgment demonstrates that learned District and Sessions Judge had been, also, exercising the power and jurisdiction of Nari.O- Shishu Nirjatan Daman Tribunal. Fate of the convict-appellant and result of the case would have been the same whether it would have been tried either as a Nari-O- Shishu Case by the Tribunal or as a Sessions case by learned Sessions Judge and if section 11 (ka) of The Ain of 2000 was not attracted in respect of convict -appellant, the offence of section 302 of The Penal Code could be very much pressed into, service against the convict appellant and he could be conveniently tried and convicted for offence of section 302 of Penal Code. The State Vs. Kamruzzaman alias Mantu 13 BLT (HCD)-403 Section-11 (Ka) Demand of dowry PWs. 1, 2 and 3 admittedly are relatives and they in unequivocal terms in their testimonies testified that after marriage demand of dowry of Taka 20,000/- had been put forth and there had been an agreement entered into between Informant party and accused party in the way that Taka 10,000/-would be paid as dowry to Ainul Haque and out of that amount Taka 8,000/- had been paid in two installments and for payment of rest Taka 2,000/- time had been sought. It, also, came out from evidence of PW3 that PW2 Abdur Rashid constructed a house for Ainul Haque. PW4, though, had been declared hostile from prosecution yet in cross-examination it emerged from his testimony that he heard that uncle of Hosna Nahar constructed a house for condemned prisoner. Demand of dowry, thus, had been established by cogent evidence of PWs 1,2 and 3. The State Vs. Md. Ainul Haque 14 BLT (HCD)-234 Section-19 read with Code of Criminal Procedure, 1898 Section 497 The Court has been given a positive guide line to consider the prayer for bail where guiding principle remains in section 497 of the Code of Criminal Procedure. Dr. Debesh Chandra Nandi Vs. The State 12 BLT (HCD)-140 Section -19 read with Section -25 Though the tribunal and the High Court division on appeal is empowered to grant bail under the general provision of the Code the power is limited and such power shouldbe exercised subject to specific condition] and restriction mentioned in section 19. This restricted power of bail prevails notwithstanding the general provision of section 25 of the Ain. No expressed] provision is made for granting bail to another person accused of any offence punishabld under this Ain only because bail has not been opposed by the informant or the informant party consents to bail. Md. Shahid Malongi & Anr. Vs The State 13 BLT (HCD-302 Section 22 read with Code of Criminal Procedure, 1898 Section 164 Section 22 of The Ain of 2000 is almost akin to section 164 of The Code of Criminal Procedure (Briefly The Code). Distinction which is marshalled is that in section 164 of The Code provision of recording confession along with statement has been supplied and in section 22 of The Ain of 2000 law of recording a confession had not been contributed. Abu Taher Vs The State 14 BLT (HCD) 68 Section- 27(3) Unless any of the offence becomes punishable under Nari-O-Shishu Nirjatan Daman Ai 2000 the learned Judge of the Tribunal has no jurisdiction to take cognizance of another offence punishable under general law. Shamsunnahar Vs. State 14 BLT (HCD) 184 Section-28 Custody of child - the father of the victim is not a party to this case - whether this appeal maintainable In the present case the appellant is not only the complainant, rather the impugned order also was passed on his prayer seeking custody of his daughter and this order has aggrieved this appellant only. It is well settled that an information can prefer an revision under section 439 of the Code of Criminal Procedure against a judgment of acquittal where the state does not prefer any appeal. The conferment of this very power on the informant has recognized the informant/ complainant as an aggrieved party, no doubt. So, my view is that by no stretch of imagination can the complainants or informants be excluded from the category of "?????????" or "aggrieved party" as stated in section 28 of Nari-O-Shishu Nirjatan Daman Ain, 2000 . Nannu Miah Vs The State & Ors 13 BLT (HCD) 245 Nari-O-Shishu Nirjatan Daman Ain (Amended) 2003 Section-11(Ga) read with Code of Criminal Procedure, 1898 Section-561A Allegation that informant's Husband with Be active help of the Petitioners (Husband's brother and Sister) assaulted on her with intent to cause her miscarriage which caused simple injury on her Person After completing investigation Police recommending for discharging the present accused petitioner's from allegations as because during investigation police could gather any sorts of tangible evidence to connect this petitioner's -Held; we are of the view that there is no clear evidence or legal basis to justify the order of taking cognizance so far it relates to the accused petitioners under Section 11 (Ga) of the Nari-O-Shishu Nirjatan Daman Ain (Amended) 2003 ignoring the police report under section 173 Cr.P.C.-Rule is made absolute. Jannatul Ferdous @ Kushum & Anr Vs. The State 14 BLT (HCD) 567 Section-31 Section 31 provides that of the Tribunal is of opinion that it is necessary to put any woman irrespective of her age or child in safe custody in course of trial it will be competent to direct to put such woman or child at any place selected for such purpose in the custody of the Government authority outside jail or in the custody of any person or organization considered to be proper in the opinion of the Tribunal in the facts and circumstances of the case- In the instant case the petitioner Merina Renu being still minor the tribunal has rightly ordered to give her in the custody of her mother. Merina Renu Vs The State 14 BLT (HCD) 177 Section-31 Safe custody of the victim Minor girl On plain reading of section 31 discretionary authority of the Tribunal to pass an order to put any girl in safe custody outside jail in the custody of Government authority or any person or organization in course of trial of an offence under the Ain is intended to ensure safety, security and welfare of the girl, when Nari-O-Shishu Nirjatan Daman Tribunal by order dated 16.3.2006 directed for release minor girl Jannatun Noor Popy victim of an offence under the Ain and allowed custody of the minor to her mother no person or organization is authorised to question validity of the order under section 31 of the Ain. Mostafa Kamal Vs. The State 14 BLT (HCD)-364 Section-31 No person or organization can ask for safe custody of victim girl or child as of right unless such custody is assigned or given to it at the sole discretion of the Tribunal. Mostafa Kamal Vs. The State 14 BLT (HCD)-364 Section -31 Welfare of a minor girl The Tribunal itself having found "since the victim is a minor she cannot make her choice" - the tribunal failed to consider that the minors refusal to go her father is irrelevant and the same is not a condition precedent for giving her custody to the father. It is settled that father as the well wisher of a minor daughter is entitled to her custody and a minor in her own interest should be given to her father's custody. It also decided by the Appellate Division that any observation made by the minor girl is a victim of a offence of abduction and rape and it is not at all desirable that she should be kept in jail for a long and indefinite period which will be detrimental to her welfare. In our view the welfare minor girl Ishrat Shirin will be best served if she is given to her father. Nannu Miah Vs The State & Ors. 13 BLT (HCD)-245. Penal Code, 1860 Section—1 It lays down that the Penal Code extends only to offences committed in Bangladesh and not to offences committed outside Bangladesh. Abdul Haque Vs. The State, 14BLD(HCD)204 Section—21, Clause 12 Principal of a private College is not a public servant Clause 12 of section 21 of the Penal Code provides that every person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of public duty is a public servant. Public duty is one which is created and conferred by law by which an individual is vested with some portion of the sovereign function of the Government to be exercised by him for the performance of the duty for the term and tenure prescribed by law. There is no such law in the instant case and as such the petitioner cannot be said to perform public duty and called a public servant. Md Matiur Rahman Vs The State, 19BLD(HCD)607 Ref: 30DLR(SC)127; PLD1964 Dhaka 330; A1R1957(SC)13 and A1R1918 Lahore 1 52—distinguishable Section—34 Common Intention This section-does not create any distinct offence. It is intended to meet a case where the members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually ‘Common intention’ within the meaning of this section pre-supposes a prior concert. There must be a prior meeting of the minds leading to a pre-arranged plan to commit an offence. The common intention to commit the offence invites the application of section 34 of the Penal Code. In offences involving physical violence, the presence of the accused at the scene of the occurrence renders him liable on the principle of joint liability but where the offence consists of diverse acts and it may be committed at different times, the presence of the accused at the scene of the occurrence is not necessary. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53 Ref: 44DLR 83; A.I.R.l957(SC)381; 16 DLR(SC) 94; 16 DLR (Dhaka) 189; 29DLR (SC)271; A.I.R. 1978 (SC) 1248; A.I. R. 1939 (Cal) 65; A.I.R. 1929 (Bombay) 327; PLD 1957 (West Pakistan) Lahore, 956; A.LR. 1946 (Sind) 43; 12DLR (SC) 217; 27 DLR (AD) 29; 44 DLR (AD) 10; A.I.R. 1952 (SC) 474; A.1.R. 1976 (SC) 2027—Cited Section—34 Under section 34 of the Penal Code the essence of joint liability is to be found in the existence of a common intention animating the accused in the doing of a criminal act in furtherance of such intention. Before application of this section to a case, it must be shown: (a) a criminal act was done by several persons, (b) all the accused intended the commission of the offence and (c) the criminal act was done in furtherance of the common intention of all. Abul Kalam Azad Vs. The State, 14BLD (HCD)401 Sections—34 and 149 Sections 34 and 149 of the Penal Code are two distinct and separate offences with different ingredients. Section 34 of the Penal Code involves a direct overt act on the part of the accused sharing a ‘common intention’ with others for the commission of an offence while section 149 of the Penal Code is essentially a vicarious liability for being a member of an unlawful assembly with the ‘common object’ of committing the offences. These two offences are of different nature. Abu Talukder Vs The State, 19BLD (HCD)225 Sections—34 and 149 Common intention is an intention to commit the crime actually committed and each accused person can be convicted if he shared the common intention. The common intention contemplated by this section is anterior to the commission of the crime and it does not refer to the time when the offence is actually committed. A person cannot be found guilty under section 148 of the Penal Code unless he carried with him a dangerous weapon. A general statement that the accused persons were armed with dangerous weapons like dhal, katra, lathi and sorki is not sufficient to warrant a conviction under this section. Nurul Haque Matbar and others Vs. The State, 14BLD(HCD)178 Sections—34 and 149 Section 34 applies in a case where a criminal act is done by two or more persons in furtherance of the common intention of all while section 149 applies in the case of a member of an unlawful assembly when a criminal act is committed by any member of the unlawful assembly in prosecution of the common object of that assembly. Ataur Rahman and others Vs. The State, 14BLD(HCD)391 Ref: 37 DLR 157—Cited Sections—99 and 100 Right of private defence of person even extends to causing of death when there is a reasonable apprehension that the intended assault by the aggressor would cause death or grievous hurt. But no right of private defence of person is available against an unarmed man. Dalim and another Vs. The State, 15 BLD (HCD)133 Section—100 Right of private defence—When it extends to causing death? When the accused had scuffles with the deceased sometime before the occurrence and the fear of retaliation from the deceased party overpowers the mind of the accused, it is not possible for him, whose mental excitement can be better imagined than described, to weigh the position in golden scales. In such a situation when he is faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of private defence. The accused can not be said to have exceeded the right of self-defence. Ruhul Amin Mondal Vs. The State, 16BLD(HCD)91 Section—109 Abetment Abatement is an offence under the Penal Code and a person may be charged for abetting an offence punishable under a special law even though the word ‘abetment may not be mentioned as an offence under the Special Act. Hussain Mohammad Ershad, former President Vs. The State, 14BLD(AD)178 Ref: 44 DLR (AD) 215; 33DLR 379; 17 DLR (SC) 261—Cited Section—120B Criminal Conspiracy Assembly at Bangabhaban on the occasion of oath taking ceremony took place after the occurrence of the previous night and the presence of the petitioner at Bangabhaban on the following day cannot by itself be a sufficient ground for even an inference for a criminal conspiracy. Her jubilation might be her husband but for that it cannot be said that she was in the conspiracy the result of moral support in the activities of her husband but for that it cannot be said that she was in the conspiracy. Mrs. Jobaida Rashid Vs The State, 17BLD(HCD)352 Ref: ‘Principles and Digest of the Law of Evidence’—By M. Monir; Queen Vs. Blake, 1844 6QB 126; 17 BLD (1997) 11; 17 BLD (AD)( 1997)54; 17BLD(AD)( 1997)163:2 BLC (AD) (1997) 75—Cited Sections—141, fifth clause and 143 If an assembly of five or more persons takes a decision to observe Hartal by themselves and their associates, then the decision does not come under the mischief of fifth clause of section 141 of the Penal Code. This decision does not contemplate holding of any procession or picket or any activity or activities to implement the decision. But if an assembly of five or more persons takes the decision to observe hartal to be participated by the people at large so that their common object is to compel others obviously by show of criminal force to do what they are not legally bound to do, then the said assembly must be an unlawful assembly according to fifth clause of section 141 of the Penal Code and the members of that unlawful assembly are liable to be punished under section 143 of the Penal Code. Consequently the processions or other activities in support of or to force such hartal shall be unlawful assemblies. Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State Vs. Mr Md Zillur Rahman and ors., 19BLD(HCD)303 Section—149 For applying section 149 of the Penal Code against an accused, three conditions must be fulfilled: (a) the accused must have been a member of the unlawful assembly at the time the offence was committed; (b) the offence must have been committed in prosecution of the common object, or (c) the offence must be such as the members of the assembly knew likely to be committed in prosecution of that object. Before applying section 149, the Court must have indubitable evidence that the members of the unlawful assembly constituted the statutory number of five, though some of them might not have been named, or identified, or brought to trial. Rafiqul Islam Vs. The State, 13BLD (AD)11 7 Ref: A.I.R.1953 SC 364; 1969 SCMR 537; AIR 1960 SC(290); AIR 1963 SC 174; AIR 1974 Sc 1567; A1R1975 SC 1917 (1921 and 1922); AIR 1978 sc 1233—Cited Section—188 It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code Abdul Ahad @ Md Abdul Ahad Vs The State, 20BLD(HCD)372 Section—201 To sustain a charge U/s 201 of the Penal Code it is essential to prove that an offence has been committed and that the accused knew or had reason to believe that an offence has been committed and with the requisite knowledge and intent to screen the offenders from legal punishment causes the evidence thereof to disappear or gives false information in respect of such offence, knowing or having reason to believe the same to be false. Khandkar Md. Moniruzzaman Vs.The State, 14BLD(HCD)308 Ref: 35 DLR (AD) 127; 18 DLR(SC)289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR238; 45DLR386; 30DLR58; 1984 B.C.R. 231; P.L.D. 1978 Lahore 1285—Cited Section—295A Deliberate and malicious acts, either spoken or written, or by visible representation intended to outrage religious feelings of any class of citizens constitute an offence under section 295A of the Penal Code. Dr. Homeo Baba Jahangir Beiman –al-Shuresari Vs. The State, 16BLD(HCD) 140 Ref: 40 DLR 359, 1993 B.L.D. 45; 7 DLR (WP) 17 (F.B); 8 DLR (FC) 110; S.C.C. Vol.IV, 213—Cited Section—295A Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs Section 295A of the Code on its language is applicable to those insults to religious beliefs which in addition to being deliberate and malicious are intended to outrage the religious feelings of the followers of that religion. After going through the publication very carefully and meticulously as to its entirity the High Court Division held that the same has not been written or published with any intention to hit the religious feeling or sentiments of the Muslims, rather, it was written against the narrow interpretation or distorted meaning given or spread out in our country, specially, by less educated and half educated fanatic religious Mollas and Islamic Fotowabaj. Reading of the entire caption and publication establishes that its inner or real meaning is not at all intended to hit the feeling of any Muslim or to distort the meaning of the said Sura of the Holy Quaran. Shamsuddin Ahmed and others Vs The State and another, 20BLD(HCD)268 Ref: “Jesus In Heaven on earth” and Working Muslim Mission and Literary Trust, Lahore, and of Civil and Military Gazette, Limited Vs. The Crown, 7DLR(W.P.C. Lahore) 17—relied Sections—299 and 300 Mere killing of a person or mere causing of a person’s death is not murder or a culpable homicide but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in section 299 as “culpable homicide” and four classes of cases have been described in section 300 as “murder”. The essential difference between mere “culpable homicide” and “murder” is the degree of probability of causing death. When death is probable, it is culpable homicide but when death is most probable, it is murder. The State Vs. Ashraf Ali and others, 14BLD (AD)127 Sections—300 and 304 Part—I When it is clear from the evidence that the free fight between the parties took place following an altercation it stands out that death of the victim was caused without any premeditation in a sudden fight in the heat of passion and without the offenders having taken undue advantage or acted in a cruel or unusual manner. This attracts Exception 4 of section 300 of the Penal Code and brings the case U/s 304 part 1. Abul Kalam Azad Vs. The State, 14BLD (HCD)401 Ref: PLD1950 (Lahore)90; 14BLD (1994) 33; 40DLR443—Cited. Section—302 In a case where two persons have been murdered at dead of night, it is but natural to inform the police first about the occurrence. Non-mentioning of any name in the F.I.R. rings a truth in the F.I.R. Shahjahan Sardar and others Vs. The State 13BLD(AD)58 Section—302 In case where allegation had been made that a husband had murdered his wife, whether the husband had a duty to explain how and by whom she was murdered—the Public Prosecutor, whether is supposed to know the law and has a responsibility to work with devotion. In case where the allegations had been that a husband had murdered his wife and then absconded, the husband in such a situation had a duty to explain how his wife was murdered and by whom she was murdered and in case of non-explanation by the husband or his silence in the matter or he having absconded immediately after the murder, would be considered to be a good ground for a finding that the husband is guilty of murder of his wife if, however, there is no suggestion or circumstances to show to the contrary that other inmates of the house also used to beat her and killing her in the process. (ii) The Public Prosecutor is supposed to know the law and has a responsibility to work with devotion keeping in mind that he is representing not a party but the people in the administration of criminal justice. The State Vs. Nurul Huq 13BLD (HCD)99 Ref: 172 I.C.374; 39C.L.J 123; AIR 1977 (SC)1116; 126 I.C.689; 62 I.C. 545; P.L.D. 1964 (SC)813; 31DLR 312; 16 D.L.R (Dacca) 598; A.I.R 1973(SC)2474—Cited Section—302 Circumstantial evidence—Chain of circumstances wanting—presumption that deceased was last found in the company of accused—whether the accused is the killer of the deceased. The circumstantial evidence found against the accused is incapable of explanation on any reasonable theory except that of the guilt of the accused his persons. Accused presumed to be innocent of the charge till guilt is established by legal evidence. Principle to be followed in criminal case based on circumstantial evidence. It is the fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that the accused and accused only was the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused. Last seen theory—in the absence of any eye-witness to the murder and in the absence of any positive evidence that appellant Malai was found, following deceased Siddique Ali with sharp cutting weapons in hand and in the absence of any overt act on the part of the deceased it cannot be said with reasonable certainty that appellant Malai was responsible for the murder of deceased Siddique Ali Litigation—litigation existing between the accused and some of the witnesses is not enough to bear grudge by the accused so as to commit the offence of murder, rather such litigation sometime can be taken as a cause for false implication. Malai Miah Vs. The State (1993) 13BLD (HCD)277 Section—302 When admittedly a wife sleeps at night with the husband in a room or hut not approachable by others, whether the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record? When admittedly a wife sleeps at night with the husband in a room or hut which is not approachable by others and there is no probable circumstance explaining the cause of death of the wife and she is found to have been killed by in a brutal manner by strangulation, the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record against him. Abdul Hamid @ Sofaruddin Vs. The State, 13BLD(HCD)563 Ref: 38DLR235; 40 DLR(AD) 139—Cited Section—302 Motive When there is sufficient direct evidence to prove an offence, motive is immaterial and has no importance. While trying a case under section 302 of the Penal Code or hearing an appeal involving section 302, the Court must not consider first the motive of the murder, because motive is a matter of speculation and it rests in the mind and special knowledge of the accused persons. Motive is not a necessary ingredient of an offence under section 302 of the Penal Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, specially when the case is based on circumstantial evidence. [Per Mustafa Kamal, J] The State Vs Giasuddin and others, 18 BLD(AD)254 Section—302 Plea of alibi In a wife killing case it is always presumed that the husband was with the deceased-wife at the time of occurrence, unless any alibi is set up by the defence. In that case the burden of proving such plea rests on the husband in order to absolve him of any criminal liability. Abdus Salam Vs The State, 19BLD (HCD)98 Section—302 Since the sentence prescribed under section 302 of the Penal Code is death or imprisonment for life, the Court before recording a conviction must be satisfied beyond reasonable doubts about the guilt of the accused persons on careful scrutiny of the evidence on record. A conviction even on grave suspicion and high probability is not tenable in law. Md. Jiaur Rahman Vs. The State, 15BLD (HCD)459 Section—302 Sentence Sentence is a complex matter which needs special considerations in the context of proved facts. In the instant case the broad facts that stare at the face are that there were hot altercations and exchange of hot words between the parties immediately preceding the occurrence and there was grappling by Salam and 2 others on one side and victim Jalal on the other and in the course of such quarrel and on the hit of passion condemned prisoner Abdul Aziz Mina inflected dagger blows on the victim. Under such circumstances, it is to be found that the condemned prisoner had no premeditation for killing victim Jalal and he acted on the heat of passion. The sentence of death is therefore commuted to a sentence of imprisonment for life. The State Vs Abdul Aziz Mina, 16BLD(HCD)183 Sections—302/109 In view of the fact that the condemned prisoner did not inflict any injury on victim Hazera, although he was a silent spectator to the cruel and gruesome murder of his wife by his companions, who were acquitted for want of legal evidence, it is reasonable to hold that he could not be convicted under section 302 of the Penal Code but should be found guilty for abetment under sections 302/109 of the Penal Code. Abdul Awal Vs. The State, 14BLD(AD)224 Sections—302134 Evidence Act, 1872(1 of 1872) Section—3 There is complete chain of circumstances that the appellants assaulted deceased victim Biswajit severely and dealt fatal blow causing his death when appellant Guizar participated in the occurrence most actively and he was found by PW4 for the last time with the deceased victim when Gulzar was chasing by the eastern side of the khal and the circumstances of the case taken cumulatively are forming a claim so complete that there is no escaped from the conclusion that the murder of victim Biswajit was committed by the appellant Gulzar and his associates and none else. Guizar Biswas and others Vs The State,20BLD(HCD)550 Sections—302/34 The wife of the deceased deposed in Court that she had recognised the assailants of her husband and accused Akkel Ali gave channy blow, Delwar gave dao blow, accused Omar Ali gave Lathi blow and accused Quasem gave rifle blow on her husband who succumbed to the injuries on 15.6.1989 in the hospital which is corroborated by PWs. 1,2, 3, 4, 6 and 8 and the dying declaration and there is nothing to disbelieve the credibility of their evidences and hence the prosecution proved the case beyond all reasonable doubt and therefore the conviction and sentences under section 302/34 of the Penal Code against the condemned convict is sustainable. The State Vs Akkel Ali and ors, 20BLD (HCD)484 Sections—302/34 and 201/34 Non-recovery of the deadbody Even in a case of non-recovery of the deadbody of a victim a conviction can be secured for an offence of murder under section 302 of the Penal Code if there be legal and sufficient evidence on record to prove the commission of murder by the accused. In the face of clear evidence of eye-witnesses proving murder of the victim by the accused by inflicting assaults on his person and the subsequent removal of the deadbody by the accused persons for the purpose of causing disappearance thereof, Conviction of the appellant under sections 302/34 of the Penal Code is justified. There is no warrant of law altering the charge from section 302 to section 364 of the Penal Code merely because the dead body was not recovered. Shaha and others Vs The State 17BLD (AD)241 Sections—302 and 302/149 A conviction under section 302 of the Penal Code and a conviction under sections 302/149 of the Penal Code are different kinds of conviction as section 302 of the Penal Code involves direct and personal liability of the accused whereas sections 302/149 of the Penal Code involve a vicarious liability. The trial Court convicted the accused-appellant under sections 302/149 of the Penal Code and as such the High Court Division was wrong in affirming the order of conviction and sentence under section 302 of the Penal Code. Altaf Hossain Vs The State, 18BLD (AD)231 Sections—302, 304 and 326 The line of demarcation between culpable homicide and grievous hurt is rather thin. In the former case injury must be such as is likely to cause death whereas in the latter case that is likely to endanger life. Offence of culpable homicide pre-supposes an intention or knowledge of likelihood of causing death. In the absence of such intention or knowledge the offence committed may be a grievous hurt notwithstanding death being caused. Humayun Matubbar Vs The State, 18 BLD (HCD)492 Section—304 Part II On scrutiny and careful analysis of the evidence of the P.Ws it appears that accused Shamsul Huq did not foresee that throwing of brick towards victim Kastura Bibi would cause death to her. He had no intention to cause death or to cause such bodily injury as was likely to cause death. Victim sustained violent blow on the abdominal wall by the brick thrown towards her chest and got senseless but death occurred when accused Abdul Hoque (since deceased) pressed her on the neck resulting in her spontaneous death. Death would not have occurred if accused Abdul Hoque would not have played the part of pressing the victim on her neck. Accused Shamsul Huq had no premeditated intention to kill the victim and the intention to kill is lacking in the instant case. Although, he had no intention to kill the victim, it must be held that he had the knowledge that such throwing of brick was likely to cause her death and the act done by him was both rash and indiscreet and as such accused Shamsul Huq is liable for the commission of an offence punishable under section 304 Part II of the Penal Code. Abdul Jabbar and another Vs. The State, 18BLD(HCD)109 Ref: 5BLD(AD)198; 6BLD(AD)318; 10 BLD (AD)210; 5BLD 129; 8BLD 129; 48DLR 446—Cited Sections—363 and 361 Custody of a victim girl, if the allegations are that of kidnapping of a minor girl out of the keeping of the lawful guardian. Kidnapping of a minor girl out of the keeping of the lawful guardian is an offence under Section 363 of the Penal Code. For the purpose of custody of the victim girl as may be prayed for in the criminal Court in a pending proceeding, the Court has to proceed on the basis that the female is a minor under sixteen years of age as laid down in section 361 of the Penal Code. For proving the offence of kidnapping the minority of the victim will have to be established at the trial. Md. Wahed Ali Dewan Vs. The State and another, 14BLD(AD)32 Section—376 The offence committed by accused appellant finds corroboration from the medical report, namely the report of P.W. 1 who found marks of violence on the person of the victim and opined that this is a case of rape. The evidence of the witnesses has clearly established that accused appellant committed the crime of rape on victim Kazal Rekha. The learned Judge has rightly found the accused guilty of the offence under section 376 of the Penal Code. Tofazzal Hossain Khan Vs The State, 17 BLD(HCD)306 Section—376 Cruelty To Woman (Determent Punishment) Ordinance, 1983 (LX of 1983) Section—4(b)(c) The High Court Diyision on consideration of evidence of PWs rightly found that accused-petitioner Bazlu raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim girl Mahinur Begum and as such the finding of conviction and sentence of the High Court Division are based on proper appreciation of evidence on record. Bazlu Talukder Vs The State, 20 BLD (AD)227 Section—379 When growing of the case crops by the complainant and the cutting and dishonestly and taking away of the same by the accused are proved, the accused is guilty of theft under section 379 of the Penal Code. In such circumstances, no plea of bonafide claim of right to the case land can save the accused from the criminal liability. Md. Motaleb Sardar and others Vs. The State and another, 19BLD(HCD)407 Section—379 Theft and bonafide claim of right It is well-settled that a co-sharer in exclusive possession of a parcel of land is entitled to maintain his possession therein to the exclusion of his co-sharers until the ejmali property is partitioned by metes and bounds but before effecting such partition the co-sharers or co-owners out of possession have no right to disturb his possession, not to speak of cutting and taking away crops grown by him. In such a case the bonafide claim of right in the land cannot extend to cutting and taking away crops grown by a co-sharer in possession. Bonafide or contested claim of right is no defence against a charge under section 379 of the Penal Code for cutting and taking away crops grown by the co-sharer in possession. Nasiruddin Shah and others Vs Nazrul Islam and others, 18BLD(HCD)634 Section—392 Punishment for robbery Section—394 Punishment for voluntarily causing hurt in committing robbery In view of the fact that the two appellants and some other unidentified persons illegally confined the informant shop-keeper and others in the shop and by curtailing their liberty forcibly looted away valuable goods from their possession but without causing hurt to anybody, the appellants committed the offence punishable under section 392 of the Penal Code not under section 394. Gohar Ali and another Vs. The State 16BLD(HCD)398 Section—394 Non-examination of investigating officer does not always prejudice the accused Admittedly the appellants remained in abscondence during the whole trial and in such a situation the non-examination of the investigating officer cannot be said to have caused any prejudice to the appellants. Gohar Ali and another Vs. The State 16BLD (HCD)398 Section—395 Dacoity is usually committed at dead hours of the night and in that view of the matter the means of recognition is of vital importance. The Court is to scrutinise the evidence of witnesses with great care and caution in respect of recognition of the accused persons. Where the informant’s testimony remains uncorroborated and the identity of the accused is not established beyond reasonable doubts, it is unsafe to convict the accused persons. Kuti alias Bellal and others Vs. The State, 15BLD(HCD)9 Section—395 In a case of dacoity committed in the darkness of night the question of recognition is of vital importance. When the only eye witness to the occurrence does not state in his evidence about the means of recognition of the alleged dacoits, the order of conviction cannot be sustained. Subal Chandra Das Vs. The State, 15 BLD (HCD) 121 Section—396 In absence of any evidence of dacoity by any of the witness and in absence of any recover of any article taken away during the dacoity from the possession of any of the accused person it can be safely said that the prosecution has hopelessly failed to prove the case of dacoity and therefore the charge under section 396 P.C. must fail on the ground of absence of evidence to prove any of the ingredient of section 391 of the Penal Code. The State Vs Md. Abdul Ali and others Vs The State, 20BLD(HCD)327 Section—405 Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted, whether will establish the fact of criminal misappropriation? 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 tickets after sale. Mere delay in payment of money entrusted to a person, when there was no particular obligation to pay at a certain date, does not amount to misappropriation. Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted will not establish the fact of criminal misappropriation, if mens rea is not established. The prosecution must also establish, apart m entrustment that the accused had dishonestly misappropriated the property entrusted. A.H.M. Siddique Vs. The State 13BLD (HCD)85 Ref: 9DLR(SC) 14; 3lCr.L.J.(1930)1198; A.I.R.( 1940)330;AIR(1976)(SC) 1966—Cited Sections—406 and 420 The question of offence of cheating, whether arises when there is nothing to show that any entrustment of property was made to the accused? The question of offence of the cheating does not arise (in the instant case) as there is nothing to show that the accused has dishonestly induced the complainant to sell the fish to him on credit. There is nothing to show that any entrustment of the fish was made to the accused for sale of fish on credit according to the direction of the person making the entrustment Md. Islam Ali Mia alias Md.Islam Vs. Ama! Chandra Mondal and another, 13BLD (AD)28 Sections—406/420 There is no specific promise for payment by any specific date and as such the High Court Division did not find any existence of initial intention for deception on the part of the accused petitioner. What happened between them was in due course of normal and regular business transaction for which no criminal action lies. At best the informant may go for civil action against the accused petitioner. Mohiuddin Md Abdul Kader Vs The State and another, 20BLD(HCD)499 Ref: 18BLD(AD)289; 49DLR(AD)180— Not applicable Sections—406/420 The allegations made in the petition of complaint it clearly shows that the petitioner had initial intention to deceive the complainant 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. Abu Baker Siddique Vs. The State & anr, 18BLD (AD)289 Sections—406/420 Dishonouring of the cheque itself does not constitute the offence of cheating. As regards the argument that the accused- petitioner issued a cheque knowing fully well that he had no money in the account and that conduct amongst to cheating we are of the view that dishonouring of the cheque itself does not constitute the offence of cheating. Md Motaleb Hossain Vs The State and another, 20BLD(HCD)573 Ref: Md. Asaduzzaman Vs. Salamatullah, 1 9BLD( 1999) (HCD)46 1—relied. Section—406/420 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 question between the parties is clearly of a civil nature. Dewan Obaidur Rahman Vs. The State and anr, 19BLD (AD)128 Ref: 45DLR(AD)27—relied upon Section—409 Awarding sentence of fine along with sentence of imprisonment for life, whether can be said to be illegal. Awarding sentence of fine alongwith imprisonment for life cannot is not illegal in view of the said provisions of section 409 of the Penal Code. A.M.A. Wazedul Islam Vs. The State 13BLD (HCD)296 Section—409 The word “banker” used is section 409 of the Penal Code, whether has been used in the technical sense of the Banking Companies Act. Held: The word “Banker”occurring in section 409 of the Penal Code has not been used in the technical sense of the Banking Companies Act but it signifies any person who discharges any of the functions of the customary business of banking. The word also includes a firm or company that carries on such business. Mustafizur Rahman Vs. The State and others, 13BLD(HCD)287 Ref: 1960 Cr. L.J. 188; 44 DLR(AD) 192; 23DLR(SC)4 1—Cited Section—409 Mere delay in payment entrusted to a person, whether misappropriation? Mere delay in payment of money entrusted to a person, when there was no particular obligaton to pay at a certain date, does not amount to misappropriation. A.H.M. Siddique Vs. The State, 13BLD (HCD)85 Section—409 In section 409 of the Penal Code there is no provision for confiscation of property. Yet the Appellate Division refused to consider the prayer of the petitioner at this stage as this point was not specifically raised before the High Court Division. Bibhuti Bushan Talukder Vs The State, 17BLD(AD) 168 Section—409 Mere retention of money by the accused for some time without actual use for which it was meant or mere delay in disbursement of money due from him, if properly explained, does not constitute an offence under section 409 of the Penal Code. A.K.M. Hafizuddin Vs. The State, 15 BLD(HCD)234 Section—409 The ingredients of section 409 of the Code are misappropriation to commit criminal breach of trust in respect of property over which he had dominion as public servant. The appellant had no criminal intention to commit such criminal breach of trust in respect of the property which was held within his dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding over his financial difficulties and as such the appellant is entitled to acquittal as of right. A.K.M. Mohiuddin Vs The State, 20 BLD(HCD)172 Section—411 Dishonestly retaining or receiving stolen property In order to sustain a conviction under section 411 of the Code the prosecution must prove affirmatively by reliable evidence that the accused had exclusive possession and effective control or domain over the stolen property or he received or retained the same knowing or having reason to believe it to be a stolen property. Md. Afsar Ali Pramanik Vs The State, 20BLD(HCD)356 Section—415 Simple dishonouring of a cheque itself is not cheating To constitute an offence of cheating as described in section 415 of the Penal Code, there must be a specific allegation that the accused had initial intention to deceive the complainant. It is also true that such intention can be gathered from the facts and circumstances of a because such intention normally is concealed in the mind and is not expressed. If there are allegations that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not made within the specific time, it may be inferred that there was initial intention of deception. Md Asaduzzaman Vs Md Salamatullah, 19BLD(HCD)461 Ref: 46 DLR (AD) 180; 30 DLR 327; 27 DLR (AD) 175; 1954 Crl.L.J. (SC) 1806; 10 BLD (AD) 168: 42DLR(AD)240—Cited Section—415 It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating. The intention is to be gathered from the surrounding circumstances. Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD) 78 Section—420 To sustain a charge of cheating, the prosecution must prove the initial intention of the accused to deceive. Abdul Karim Vs Shamsul Alam and another, 14BLD(HCD)167 Ref: 42 DLR (AD) 31; 27 DLR (AD)175; 36 DLR (AD) 14—Cited Section—420 Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend money having no intention to repay, whether it will be an offence of cheating punishable under section 420 B.P.C. Intention of a person, whether can only be gathered from his conduct? Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend the money, having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code. Intention of a person can only be gathered from his conduct at the time of the occurrence and the surrounding circumstances. Md. Shafiuddin Khan Vs. The State & another, 13BLD(HCD)362 Ref: 13 CWN, 728; 10 DLR 325, 26 DLR 146; 27 DLR (AD) 175; 7 BLD 164—Cited Sections—420 Dishonouring of the cheque itself cannot be considered as an ingredient of the offence of cheating unless there is evidence to show that after issuing it he has done something more to defraud the payee. Even such a cheque issued with the knowledge that he has not such amount in the Bank account at the moment it will not amount to cheating if he has intention to deposit the money before the cheque is presented for encashment. Mere dishonouring of the cheques itself is not an ingredient of cheating. Mohiuddin Md Abdul Kader Vs The State and another, 20BLD(HCD)499 19BLD(HCD)46 1—relied Sections—441/447 Criminal trespass It provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. In the instant case the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction. So the ingredients of section 441/447 of the Penal Code have been well-established. Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19BLD (AD)260 Section—447 Criminal trespass In view of the fact that theft of the case crop by the accused by the cutting and taking away of the same out of the possession of the complainant and damaging some crops in the course of the same transaction necessarily involves their entry into the case land and the accused are punished for the said offences, a separate conviction under section 447 of the Penal Code is wholly unwarranted. Moreover, in the absence of any finding by the trial Court on the intention or the object of the illegal trespass of the accused, conviction of the accused under sections 447 or 448 of the Penal Code is not maintainable in law. Md. Motaleb Sardar and others Vs. The State and another, 19BLD(HCD)407 Section—471 For the offence under section 471 of the Penal Code an accused can be punished, as provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah Vs The State, 17BLD(AD)170 Section—493 A mere promise of marriage made by the accused to a woman or to her guardian intending never to fulfil his promise does not warrant a conclusion that a false belief was caused in her mind that she was the lawfully married wife of the accused. Makhan alias Putu Vs. The State, 14BLD(HCD)122 Ref: 34 DLR 366—Cited Section—499 Eighth Exception Complaint made by the petitioners in good faith to the Hon’ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by 8th exception of section 499 of the Penal Code. Md. Abdun Noor and others Vs The State and another, 18BLD(HCD)624 Section—499 Ninth Exception—Defamation Bringing anything which is unjust or improper to the notice of the public at large is certainly for the public good. In the instant case, since the alleged offending imputation was made at a press conference by a person who has not been made an accused in the case and the matter was earlier published in other newspapers and the present publication was made in good faith, the offending publication per see satisfies the requirement of Ninth Exception to section 499 of the Penal Code and as such further continuation of the impugned proceeding amounts tà an abuse of the process of the Court and the same is quashed. Syed Mohammad Afzal Hossain Vs. S.M. Selim Idris, 15BLD(HCD)362 Ref. 19DLR (SC) 198—Cited Section—500 To constitute defamation, the offending words spoken must contain imputation concerning a person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such a person. Explanation 4 of section 499 of Penal Code provides that no imputation harms a person’s reputation unless that imputation lowers the moral or intellectual character of that person in the estimation of others. A.K.M. Enamul Haque Vs. Md. Mizanur Rahman and others, 14BLD(HCD) 201 Section—599/500 Imputations, if made by a lawyer iii the discharge of his or her professional duty on the character of any person in good faith, whether will constitute any offence of defamation—A lawyer while acting under the instructions of his or her client, whether is entitled to special protection? Imputation, if any, made by a lawyer, in the discharge of his or her professional duty, on the character of any person, in good faith and for protection of the interest of the person making it or of any other person or for the public good will not constitute any offence of defamation. A lawyer, while acting under the instructions of his or her client and proceeding professionally, has a qualified privilege; while acting as such, the lawyer does not, if not otherwise implicated, come within the ambit of defamation unless and until there is an express malice on his or her part; and mere knowledge in such cases can not be equated with express malice or malice in fact. The privilege enjoyed by the lawyer is only a qualified privilege and he will not come within the bounds of the offence of defamation unless and until there is an “express malice” or malice in fact on his or her part. An Advocate is entitled to special protection, when is called in question in respect of defamatory statements made by him or her in course of his or her duties as an Advocate. The Court ought to presume that he or she acted in good faith upon instructions of the clients and ought to require the party to prove the express malice. Mrs. Sigma Huda @ Sigma Huda Vs.Ishfaque Samad. 13BLD(HCD)152. Ref: (1976) 78 Born. L.R.234; A.I.R.1927 Cal. 823; A.I.R. 1932 Bom. 49O—Cited. When both criminal case and civil suit maintainable— There is no illegality in the order of revival of a case passed by the Additional District Magistrate in exercise of the powers of District Magistrate. Civil suit for recovery of money misappropriated is competent side by side with a criminal case started for the offence of criminal breach of trust and criminal misconduct. Md. Nazrul Islam Vs. The State and another— 1, MLR (1996) (AD) 409. Section 107- Abetment— Sufficient materials necessary for framing charge of abetment— No charge of abetment against any accused can be framed without sufficient incriminating materials on record. The State Vs. Khondaker Md. Moniruzzaman- 1, MLR (1996) (AD) 369. Section 302— Right of self-defence against murder charge— Section 100— Reduction of charge into section 304-1—permissible when there is land dispute between parties— Right of private defence extending to voluntarily causing the death can be taken in appropriate case when reasonable apprehension of death or grievous hurt exists. Where the deceased was not armed with deadly weapon there cannot be reasonable apprehension of death or grievous hurt providing the right of self defence. In an occurrence taking place on land dispute the conviction and sentence under section 304 Part I is justified. Khondaker Saiful Islam Vs. The State— 3, MLR 1998) (AD) 117. Section 107— Extent of penalty of abettor—can not be higher than the Principal accused— The law clearly provides that the punishment to be awarded to the abettor must not be higher than that of the principal accused. Ashrafuddin Sekandar (Major Rtd.) and others Vs. The State— 3,MLR(1998) (AD) 164. Section 141 and 143— Unlawful assembly—Hartal is unlawful assembly equally guilty— Hartal being an unlawful assembly is an offence under section 141 punishable under section 143 of the Penal Code. The State Vs. Md. Zillur Rahman and others— 4, MLR (1999) (HC) 181. Section 147—Members of unlawful assembly equally guilty— Every member of the unlawful assembly is equally guilty and liable to punishment. Bazlur Rahman Howlader @ Jilu and 3 others Vs. the State— 4, MLR (1999) (HC) 101. Section 195- Taking cognizance of offence under section 188 of Penal Code— Magistrate empowered under section 190(I) (a) is competent to take cognizance of the offence under section 188 of the Penal Code upon enquiry report submitted by police of violation of order passed by the same Magistrate under section 144 Cr.P.C. without sending any written complaint to himself as required under section 195(1) Cr.P.C. Anwar Hossain Vs. Jamal Hossain— 1, MLR (1996) (HC) 93. Conviction on circumstantial evidence— Section 302- In a case of murder in order to base conviction on circumstantial evidence it must be free from doubt. In criminal case guilt of each and every accused must be proved beyond all reasonable doubt. Where there were fourteen inmates in the house in the fateful night in which the murder was committed, the prosecution must prove beyond all reasonable doubt that such and such inmate or inmates of the house or one or two or more inmates jointly or separately committed the murder. If any doubt arises in the mind of a judge, it is difficult to convict an accused who must always be given the benefit of doubt. Zahirul Alam Kamal and two others Vs. The State- 1, MLR (1996) (HC)122. Motive in murder case—Not always to be established— The discovery of motive is not imperative in every case of murder. If motive is not established even then that does not throw the prosecution case over board. The abscondence of the accused soon after the crime by itself is not an evidence. At best it may lend weight to other evidence. Ashraf Ali Munshi Vs. the State— 1, MLR (1996) (HC) 10. Section 302— Absence of intention-mitigating factor— The absence of intention to commit murder brings the culpable homicide outside the ambit of section 302 which is an offence punishable under section 304 of the Penal Code. Baharuddin Vs. The State— 1, MLR (1996) (HC) 159. Section 302- Suspicion is not proof-It is well-settled that suspicion however strong is not substitute for proof of a murder charge which must be proved beyond doubt by independent positive evidence. Swapan Vs. The State— 1, MLR (1996) (HC) 205. Section 302-Proof of charge beyond doubt— Charge of murder must be proved to the hilt beyond doubt by consistent and reliable evidence. When there is departure from the manner of the occurrence as alleged by the prosecution found in the evidence during trial the prosecution case becomes doubtful and in such a case conviction and sentence cannot be sustained in the eye of law. KM. Hamaytuddin @ Awaranga Vs. The State— 1, MLR (1996) (HC) 280. Section 302— Charge can not be reduced merely because deadbody was not recovered— Conviction under section 302/34 can well be maintained when based on legal and sufficient evidence even if the deadbody cannot be recovered. There is no warrant to reduce the charge from Section 302 to 364 merely because the deadbody was not recovered. Shaha and others Vs. The State— 2, MLR(1997) (AD) 162. Section 302— Evidence of child witness— Evidence of a child witness corroborated by circumstantial evidence including the absconsiori of the accused immediately after the occurrence can well from the basis of conviction in a case involving murder charge under section 302 of the Penal Code. Md. Siraj Mia Vs. The State-— 2, MLR(1997) (HC) 66. Section 302— Nature of proof of charge—When land dispute exists— The charge under section 302 of the Penal Code must be proved to the hilt by consistent evidence of independent witnesses by way of corroboration to inspire confidence in the mind of the court in a case where enmity arising out of land dispute admittedly exists between the parties. Amir Hossain Dhali Vs. The State— 2, MLR(1997) (HC) 100. Section 302—Delay in lodging FIR- When not fatal— When satisfactorily explained, delay in lodging the F.I.R is not fatal for the prosecution. Minor contradictions in the evidence of the P.W.s in relation to their statements recorded under section 161 Cr.P.C are immaterial when the charge against the accused appears to have been established by the consistent evidence of reliable witnesses and the chain of incidents pointing the finger at the accused. Jahangir Howlader and Habib Mallik alias Kalu Vs. The State— 3,MLR(1998) (HC) 62. Section 302— Charge of murder — Motive of murder —where there is direct evidence— The settled position of law is that the prosecusion is not bound to prove the motive of murder where there are ocular evidence, because motive is not a necessary ingredient of the offence under section 302 of Penal Code. The failure of the prosecution to prove motive even though taken, does not render eny ground to disbelieve the prosecution case where there are material evidence of direct nature. Motive may be a matter for consideration specially when the case is based on circumstantial evidence. In a case of gruesome murder scrutiny of evidences on record must be made with great care. Reducing the sentence of death into R.I. for 10 years under section 304 in a case involving four murders in light hearted manner attended with non-application of judicial mind, surmise and conjecture, contradictory and incoherent findings unrelated with the evidence on record are held to be perverse occasioning failure of justice. State represented by the Solicitor of the Government of Bangladesh Vs. Giasuddin and others— 4, MLR (1999) (AD) 29. Section 302— Ocular evidence— Conviction and sentence passed on proper appreciation of ocular evidence cannot be interfered with. Sentence reduced by the High Court Division can not be further reduced. Babul Farajee Vs. The State— 4, MLR (1999) (AD) 149. Section 302/34— Delay in furnishing post mortem report— Effect of— Delay of 7 days in furnishing post mortem report is no ground for interference with the conviction and sentence. There is no scope to reduce the sentence of life imprisonment under section 302. Sabiruddin Mondal Vs. The State— 4, MLR (1999) (AD) 151. Section 302— Section 57— Commutation of sentence — The prosecution is not required to prove motive in all cases. Where there is direct evidence motive is immaterial. Motive may be for consideration where the case is based only on circumstantial evidence. Imprisonment for life need not be ordered to be served for 30 years which has no legal basis. Commutation of sentence is provided for under section 57 of Penal Code. Farid Ali Vs. The State— 4, MLR (1999) (HC) 23. Section 164(3)— Recording of Confessional Statement of accused—In plain paper- Not inadmissible— Penal Code 1860— Section 304— Husband is to explain circumstances under which his wife died— When the confessional statement of an accused is recorded by a competent Magistrate after due cauton to the accused about the consequence and compliance with the requirements of section 164(3) Cr. P.C. such confessional statement can not be inadmissible in evidence merely by reason of its being recorded in plain paper and one of its sheet not signed by the accused. The husband is under the legal obligation to explain the circumstances under which his wife died while they were living together in the same house. Abul Kalam Mollah Vs. The State— 4, MLR (1999) (HC) 225. Section 302— Murder of wife— Husband liability-Husband while living with wife at the time of occurrence in the same house owes an explanation as to under what circumstances his wife died. Absence of any such plausible explanation coupled with long absconsion of the husband from immediately after the occurrence constitute strong circumstance as to the guilt of the accused husband. Fazer PK. alias FazerAli (Md.) Vs. the Slate— 5 MLR(2000)(HC) 351. Section 302— murder charge— Code of Criminal Procedure, 1898— Section 154— Use of F.I.R. and power of comparison by the court when informant gives different version during trial— F.I.R. is not a substantive evidence. It is important that it gives the information about the occurrence first in point of time. Court has power to compare the recitals of the F.I.R. when the informant gives different version during trial. Khorshed (Md.) Vs. The State— 4, MLR (1999) (HC) 217. Section 302- murder charge— Delay is not always a ground for altering sentence of death— Delay by itself is not extenuating circumstance for commutation of the sentence of death into imprisonment for life. The condemned prisoner suffering from a bitter sense of being wronged by his way ward wife together with delay merit such commutation. Zahiruddin Vs. The State— 1, MLR (1996) (AD) 248. Section 302- Murder-Section 304- culpable homicide not amounting to murder-mitigating circumstances- Absence of intention to commit murder, lack of premeditation and causing injuries on sudden provocation are the elements which reduce the offence one from section 302 to 304. Abul Hashem Mollah Vs. The State— 1, MLR (1996) (HC) 99. Section 326 read with section 320— Ingredients of offence u/s 326— A hurt must conform to the ingredeints of section 320 of the Penal Code in order to be grievous and punishable under section 326. When the evidence on record are not clear and specific as to the inflicting of the injury by the particular accused and the Medical Officer while examining the hurt did not mention as to the ingredient of the eighth clause of section 320, the sentence under section 326 of the Penal Code does not appear to be perfectly justified and accordingly the sentence is reduced under the circumstances from one under section 326 to that under section 324 of the Penal Code with the sentence already served. Abdul Jalil Vs. The Slate— 4, MLR (1999) (AD) 262. Section 326 and 304—Distinction between The demarcation line between the culpable homicide not amounting to murder and grievous hurt is thin. In the former case the knowledge or intention as to the likelihood of death and in the later the knowledge as to endangering life of the victim is the essence which makes the difference between section 304 and 326 of the Penal Code. Humayun Matubbar Vs. The State— 4, MLR (1999) (HC) 176. Section 366A— Kidnapping- Bail of accused—may be granted when the victim girl in her statement stated that she went with the accused in her own accord— When the trial is being delayed for no fault of the accused and when the victim girl in her statement recorded under section 164 Cr.Pc. stated that she went with the accused in her own accord the accused in such circumstances is entitled to the privilege of bail pending trial. Nurul Amin @ Bada Vs. The State— 1, MLR (1996) (AD) 251. Section 366A — Kidnapping- Determination of age of victim—Statements of parents— While determining the age of victim girl more weight should be given to the statements of the parents than the emotional statement of the victim girl when her age hinges in the twilight of majority. Badiur Rahman Chowdhwy Vs, Nazrul Islam and another— 1. MLR (1996) (AD) 444. Section 326 and 353—Conviction-Sustainability— The conviction and sentence passed under sections 326 and 353 of the Penal Code on the basis of consistent ocular evidence of the occurrence taking place in broad day light cannot be interfered with by any other liberal construction not warranted by the facts and evidence on record. Nura Miajee Vs. The State— 2, MLR (1997) (AD) 86. Section 376—Evidence of prosecutrix— In case of sex-offence similar importance of the evidence of the prosecutrix must be given as in the case of an injured witness. There is no bar for the court in legal custom or in evidence law to act on the sole testimony of the prosecutrix except in a rarest of rare cases where she is found unreliable. Jahangir Hossain Vs. The State— 1, MLR (1996) (HC) 142. Section 366A- Offence of kidnapping-Determination of the age and custody of a victim minor girl— In deciding the age and present custody of the victim girl in a pending criminal case the High Court Division cannot surpass the powers of the trial court. Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In particular case having regard to the facts and circumstances all the available materials on record must be taken into consideration rather than solely relying on the statement of the victim girl and her physical appearance. Khairunnessa Vs. Illy Begum and another— 1, MLR (1996) (AD) 148. Section 376— Offence of rape is not compoundable— The offence under section 376 is not compoundable. The conviction and sentence based on evidence and proof cannot be Interfered with. Shorbesh Ali & another Vs. Mrs. Jarina Begum & another— 2, MLR(1997) (AD) 127. Section 376— Evidence of prosecutrix— conviction— The evidence of the victim girl aged 14 years as to how she was forcibly raped in broad day light by the accused of a neighbouring house finding her alone in her house and when she was over-whelmingly corroborated by other neighbouring witnesses who came to the P.O. house immediately after the occurrence on hearing cries of the victim and when the doctor found marks of violence and rape on her person such evidences go beyond doubt to establish the charge under section 376 of the Penal Code against the accused and the , conviction and sentence passed thereon by the trial court are perfectly justified. Tofazzal Hossain Khan Vs. The State— 2, MLR (1997) (HC) 329. Section 376—Victim disowning recognition— legal consequence— The FIR was written by the cousin of the victim girl and during trial the girl disowned the recognition of some FIR named accused and the cousin who wrote the FIR is not examined, conviction of the accused on the basis of this type of evidence cannot be sustained in the eye of law. Abdul Aziz (Md) and others Vs. The State— 2, MLR(1997) (HC) 369. Section 376—Offence of rape visa-vis the offence under section 342 of the Penal Code— jurisdiction of the Court in appeal to alter the sentence— The offence of rape punishable under Section 376 of the Penal Code in view of its inclusion in the Schedule of the Special Powers Act, 1974 was triable by Special Tribunal. On the other hand the offence under section 342 of the Penal Code is triable by the ordinary criminal court. It is patently out of the jurisdiction of the High Court Division to alter the conviction and sentence from section 376 to 342 of the Penal Code in an appeal preferred under section 30 of the Special Powers Act, 1974. Abdur Rahman and others Vs. the State— 4, MLR (1999) (AD)25. Section 379—Bonafide claim of right to property— When not available— A cosharer in exclusive possession of a portion of land is legally entitled to maintain his possession therein to the exclusion of other cosharers until the joint property is partitioned by metes and bounds. Bonafide claim of right to the property is no defence in the case under section 379 of the Penal Code and such defence can not be allowed to extend to the cutting and taking away the crops grown by the cosharer in possession of the land. Nasiruddin Shaha and others Vs. Nazrid Islam and others— 3, MLR (1998) (HC) 240. Section 395, 397 and 412— Charge of dacoity— Abseconsion of accused— no ground for conviction— When the prosecution case has departure from the FIR story on material points and the evidences are full of contradictions regarding recognition of the daciots and the manner of occurence, the disinterested C.S. wittnesses are not examined and there is enmity between the parties, the prosecution case becomes doubtful in which the conviction and sentence of the accused cannot be sustainable in the eye of law. Moreover absconsion of the accused by itself without supporting evidence can not be the basis of conviction. Pear Ali Khan alias Pear Ali and another Vs. The State— 4, MLR (1999) (HC) 258. Section 406 and 420— Immigration Ordinance, 1982— Section 23 and 26— Joint trial— Not permissible— Joint trial of offences under section 406 and 420 of the Penal Code and of section 23 of Immigration Ordinance 1982 by the Special Court is not permissible as the offence under section 23 of the Immigration Ordinance, 1982 is exclusively triable by Special Court while the offence under section 406 and 420 of the Penal Code are triable by the Magistrate. Where ingredients of the offences under section 406 and 420 of the Penal Code and under section 23 of the Immigration Ordinance, are contained in the allegation, prosecution in both the courts for the respective offences are competent. Mosammat Noor Jahan Begum @ Anchuri & another Vs. The State— 2, MLR(1997) (AD) 34. Section 302— Murder of wife— Huband's liability— Burden of proof— Alibi as defence— Nature of proof-Burden of proof of prosecution case entirely lies upon the prosecution. In a wife killing case while residing in the same house with the husband, the husband is under the liability of explaining the circumstance under which his wife was murdered. The burden of proof of alibi as to the husband's remaining somewhere else when his wife died lies upon the husband. This burden is somewhat lighter than that of the prosecution which means that the burden of the husband is discharged when he has given a reasonable explanation in favour of his innocence but the prosecution in discharging its burden has to prove the charge with cogent and consistent evidence. State Vs. Mofazzal Hossain Pramanik - 43 DLR (AD) 64. Section 34 and 149 — Common intention and common object—Participating in commission of offence— Membership of unlawful assembly- No charge lie except substantive offence— Section 34 and 149 of the Penal Code, 1860 operate in two different situations in relation to commission of an offence. There can be no charge under section 34 and 149 of the Penal Code independent of any substantive offence. When several accuseds in furtherence of common intention participate in the commission of offence the charge against all of them will be under section 34 of the Penal Code together with the principal offence. On the other hand when five or more persons forming an unlawful assembly commit an offence animated with common object, every member of the assembly is equally liable for the offence under section 149 of the Penal Code read with the substantive offence. Abdus Samad Vs. The State- 44 DLR (AD) 233. Section 561A— Quashment of proceedings under section 406 of the Penal Code— Interest of loan— A truck purchased with loan money taken from Bank against agreement and subsequently it was sold in violation of agreement and by errasing registration number and Chesis number. These allegations primafacie constitute offence under section 406 of the Penal Code and as such the proceedings can not be quashed. RuhulAmin Vs. Md. Nazrul Islam and another— 5, MLR (2000) (AD) 320. Section 406— Money taken on hand note is a loan— When money is taken as loan against hand-note it becomes the property of the loanee and the non¬payment thereof does not constitute offence punishable under section 406. Md. Reazuddin Ahmed Vs. The Stale and another— 2, MLR(1997) (AD) 37. Section 561A- Section 406, 409 of Penal Code read with section 5 (2) of Act II of of 1947- Loan taken does not constitute offence— The exemption of loan granted by Board does not constitute offence under section 406/409 of Penal Code read with section 5(2) of Act II of 1947 against the Managing Director. The proceedings being illegal are quashed under section 561A Cr.p.c. SekanderAli Vs. the Slate— 1, MLR (1996) (HC) 29. Code of Criminal Procedure, 1898 (Act V of 1898)- Section 561A- Quashment of proceedings under section 500 of the Penal Code—Rejoinder is a pre¬requisite— Although freedom of press has been guaranteed under article 39 of the Constitution subject to certain restrictions, a journalist can not take shelter under the clock of freedom of press after committing offence of defamation. Before lodging complaint under section 500 of the Penal Code, the complainant should send a rejoinder denying the truth of the contents of the publications. If the rejoinder is not published, it can be said that the publication was made without good faith and for public good. Shahadat Chowdhwy Vs. Md. Alaur Rahman— 1, MLR (1996) (HC) 140. Section 409— In order to constitute offence punishable under section 409 there must be the ingredient of criminal intention to mis-appropriate the money. A.K.M. Mohiuddin Vs. The State— 4, MLR (1999) (HC) 105. Section 409— Misappropriation—Necessary evidence when not produced— When the Investigating officer fails to seize the entire stock and distribution Ragisters and none of the prosecution witness stated anything about the misappropriation of the insecticides the accused appellant cannot be held guilty of the offence under section 409 of the Penal Code and the conviction and sentence passed by the trial court is liable to be set aside. Kalipada Paul Vs. The State— 4, MLR (1999) (HC) 185. Section 409— In order to constitute offence punishable under section 409 there must be the ingredient of criminal intention to mis-appropriate the money. A.KM. Mohiuddin Vs. The Slate— 4, MLR (1999) (HC) 105. Section 411- Alteration of sentence— Even at the revisional or appellate stage the conviction under section 411 of the Penal Code can be altered into one under section 379 in proper case where the charge appears to have been proved beyond doubt. Nizamuddin Bhuiya Vs. The State— 1, MLR (1996) (AD) 246. Section 471 and 465— No independent sentence can be passed under section 471— No sentence in excess of the limit prescribed— Section 471 does not prescribe any sentence independently. It is dependent upon section 465 which prescribes sentence of either description for a term which may extend to two years or with fine. No sentence in excess of the limit as provided under section 465 can be awarded under section 471 of the Penal Code. Abul Hossain Mollah alias Abu Mollah Vs. The Slate— 2, MLR(1997) (AD), 332. Section 420 and 477A — Proof of false entry in Register— necessary, when forgery is alleged— Where the charge relates to false entry in the Register and the genuineness of the signature is not proved during trial by producing the Register in question, the accused cannot be convicted only on the basis of oral evidence. Jamaluddin (Md) and others Vs. The State— 2, MLR(1997) (HC) 366. Section 466 and 477— The Evidence Act, 1872— Section 73— Comparing disputed handwritiags by the judges themselves— When permissible— In a case of forgery where the opinion of the Handwriting Expert is not clear and specific as to the disputed handwritings, the judges are entitled under section 73 of the Evidence Act, to compare the handwritings themselves and on such comparison together with other relevant circumstantial evidence conviction of the accused can well be secured. Raisuddin Mondal (Md) and another Vs. The state— 3, MLR(1998) (AD) 30. Section 467 and 471— Reduction of sentence on ground of old age— Point not raised before trial court and appellate court can not be allowed to be raised for the first time before Appellate Division— The appellate court is competent to reduce the substantive sentence of imprisonment, on ground of old age of the convict-appellant. Once the sentence is reduced by the appellate court on ground of old age of the Convict-Appellant the Appellate Division declined to further reduce the sentence on the same ground. Point not raised before the trial court as well as the appellate court, cannot be raised for the first time before the Appellate Division. Abdul Hye (Moalana) Vs. The State— 3, MLR (1998) (AD) 262. Section 467 / 471 / 109— Sustainability of the sentence— When evidences are consistent— Conviction and sentence based on unbroken chain of events supported by consistent evidence on record which are confirmed by the appellate and revisional court can not be interfered with by the Appellate Division when the same does not suffer from any legal infirmity or perversity. Zaidul Hque Vs. The State— 3, MLR(1998) (AD) 260. Section 468/34— Sentence to be proportionate to the gravity of the offence— The settled principle of law is that the sentence must be proportionate to the gravity of the offence and is within the judicial discretion of the Court. Long pendency of the case may be considered mitigating factor for reducing the sentence. Conviction and sentence awarded on the basis of overwhelming consistent evidence cannot be interfered with on any other hypothesis. Abdur Rouf (Md) and two others Vs. The State— 3,MLR(1998) (HC) 297. Section 466 and 471— Sentence under both section— An accused found guilty of the offence under section 466 of the Penal Code can be convicted and sentenced under section 466 but he cannot be sentenced under both sections 466 and 471 of the Penal Code. A public servant making forgery in preparing false order can well be sentenced under section 466 of the Penal Code as well as under section 5(1) of the Prevention of Corporation Act, 1947. Azizul Haque (Md) Vs. The State — 4, MLR (1999) (AD) 215. Section 447— Offence of Criminal trespass— In order to be sustainable the conviction and sentence under section 447 of the Penal Code must satisfy the ingredients enumerated under section 441 and the intention of the accused must be there to cause annoyance or intimidation or insult to the person in possession of the land by the illegal trespass. Mohammad AH Member Vs. Abul Fazal Mia Md. Mazedul Huq and another— 4, MLR (1999) (AD) 373. Section 488— Cosharer out of possession can not enter by breaking lock— The accused has no legal right to enter into the room by breaking the lock under occupation of the informant even though he is a cosharer of their ancestral property. When the conviction and sentence is well based on consistent evidence, the same does not call for any interference. Abu Md. Sayem @ Taslim Vs. The State— 4, MLR (1999) (AD) 191. Section 427, 506 II—Offence triable by Magistrate and not by village court— Where in a case an offence triable by the village court is joined with the offence triable by the Magistrate, the case shall be triable by the Magistrate and not by the village Court. Abal Kalam and others Vs. Abu Daud Gazi and another— 4, MLR (1999) (AD) 414. Section 493— Offence when constituted— Essential ingredients— Promise to marry does not constitute offence— In order to constitute offence punishable under section 493 of the Penal Code there must be the ingredients that the accused deceitfully induced a belief in the mind of the victim woman that she is his legally married wife and under that belief the accused must have had sexual intercourse with that woman after going through some formalities of marriage. Having cohabitation with woman of sufficient experience of marriage under promise to marry her in future does not constitute offence punishable under section 493 of the Penal Code. Hanif Sheikh (Md.) Vs. Asia Begum— 5, MLR(2000) (HC) 362. Section 482 and 486—Lump sentence improper— Finding the accused guilty under sections 482 and 486 and awarding of lump sentence for both offences are improper and not sustainable in law and as such the sentence impugned is modified. Hazi Oziullah and another Vs. State— 1, MLR (1996) (AD) 139. Section 395— Identification of suspects in T.I. Parade-Belated T.I.P parade-Evidentiary value of-Preconditions of holding T.I.P.- As human memory fades with the lapse of time, inordinate delay in holding T.I. parade reduces its evidentiary value. When the identifying witness had the chance of seeing the suspects in the court lock- up before the T.I. parade, the identification made in such T.I.P. cannot alone form the basis of conviction .T.I. parade in order to be reliable must be held immediately after occurrence or the arrest of the suspects. Abdul Hakim (Mirza) and others VS. The State— 5, MLR(2000) (AD) 27. Section 396— Conviction based on consistent evidence cannot be interfered with merely on ground of non-examination of Magistrate who held T.I. Parade-Conviction and sentence was awarded on proof of charge under section 396 of the Penal Code with consistent and reliable evidence on record. That the confessional statement was not relied upon and that the Magistrate who held T.I.Parade of the accused was not examined, does not constitute ground for acquittal of the convict-appellants. Abdul Hashem @ Bachchu Falar (Md) & others Vs. The Stale- 5, MLR (2000) (AD) 87. Section 467 and 420— Criminal Proceeding is maintainable when the allegations are obviously criminal in nature— Criminal Proceedings are not precluded merely on the allegations that the dispute is of civil nature when the dispute apparently appears to be criminal in nature. Ibrahim Bepari and another Vs. The State & another— 5, MLR (2000) (AD) 204. Section 302— Charge when can be altered— When there is no derict evidence that the convict-appellant inflicted the fatal injury to the deceased, the charge under section 302 of the Penal Code is altered into one under section 302/109 for abetment. Billal Vs. The State—5, MLR (2000) (AD) 244. Section 149— Common object— Motive-Distinguished— Common object is distinctly different from motive. Motive has nothing to do with common object. Prosecution is not bound to prove motive. Motive may be a matter for consideration in a case mainly based on circumstantial evidence. Settled law is that prosecution does not fail even if motive is. not proved where there is direct evidence. Bangladesh Vs. Gaisuddin and other- 4, MLR (1999) (AD) 29. Section-21 Clause-12 Principal of a private college is not a Public servant Clause 12 of Section 21 of the Penal Code provides that every person in the service or pay of the Government or remunerate by the Government by fees or commission for the performance of public duty public servant. There is no dispute that the petitioner 70% of his salary from the Government exchequer by way of subsidy. This matter no stretch of imagination that the teacher, is in the Government or is remunerated by the Government by fees or commission. Then again it remains to be seen whether he performs any public duty. It is beyond co-apprehension as to how an employee of the private institution is said to perform public duty holding a public office. Public duty is one which is created conferred by one which is created conferred by law by which an individual vested with some portion of the sovereign function of the Government to exercised by him for the performance the duty for the term and tenure prescribed by law. There is no such law in the instant case and in such view of the matter, petitioner cannot be said to perform pi duty and called a public servant. Md. Matiur Rahman Vs. The State 7 BLT (HCD) 131 Section - 34 Section 34 of Penal Code lays principle of joint liability in doing o criminal act. The essence of that liability is to be found in existence of common intention animating accused leading to doing of a criminal act in furtherance of such intention. The distinct feature of section 34 is the element of "Participation in action". The State Vs. Sabir Mia & ors. 11 BLT (HCD)-294 Section-34 Section 34 of the Penal Code is only a rule of evidence, which does not create a substantive offence. If more than one person intentionally do an act jointly, it is just same as if each of them has done it individually. Common intention requires a prior concert of all the accused and the accused can be convicted if such an intention to commit the crime has been shared by all the accused. The Solicitor Vs. Medher Ali & Ors 12 BLT (HCD)-69 Section-34 Common intention on the part of all accused persons is very much absent. No evidence came forth that there had been prior concert or prior meeting and or pre-plan or there had been subsequent development of common intention amongst accused persons to wipe out Munir (PW 3) and Khaled. Charge of section302/34 and 325/34, thus, fell and conviction If offence of section 302/34 and 325/34 became unsustainable. The State Vs. Ershad Ali Sikder and Ors. 12 BLT (HCD)-481 Section 34 Section 34makes a person liable for action ' an offence not committed by him but by another person will whom he shared the common intention. It is a rule of evidence Hi does not create a substantive offence. The section gives statutory recognition to common sense principle that if more than persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. A common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such pre-concert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. The State Vs Mehdi Hasan @ Modern & Ors. 13 BLT (HCD)-151 Section -34 Principle of joint liability in the doing of a criminal act The distinct feature of section 34 is the element of Participation in action A common intention pre-supposes prior concert. It require a pre arranged plan because before a man can be vicariously convicted for the criminal act of another the act must have been in furtherance of common intention of all of them, Accordingly, there must have a prior meeting of minds. Unless a common intention is established as a matter of necessary inference from the proved circumstance the accused person will be liable for his individual act and not for the act done any other person. For an inference of common intention to be drawn for the purpose of section 34 of the evidences, circumstance of the case should establish without any room for doubt that a meeting of minds and fusion of ideas had taken place amongst different accused and in prosecution of it over acts of the accused persons flowed out as if in obedience to the command of a single mind. Criminal sharing overt or covert act by active presence or by distant direction making out certain measure jointness in the commission of act is the essence of section 34 of Penal Code. A person merely because he was present at or near the scene without doing anything could not be and convicted with the aid of section 34 for the offence committed by other accused persons. Aminul Islam & Ors Vs. The State BLT (HCD)-420 Section -34 The liability of one person for an offence committed by another in course of a criminal act perpetuated by several persons will arise under section 34 of The Penal Code when such criminal acts are done in furtherance of common intention of the persons who join in committing the crime. Unless a common intention is established, an accused person for an act will be liable for his individual act and not for the act done by other accused persons. Touhid & Ors Vs. the State BLT (HCD)-364 Sections-34 and 149 Sections 34 and 149 of the Penal Code are two distinct and separate of fences involving different ingredients and legal consequences. While section 34 of the Penal Code involves direct over-act on the part of the accused sharing a "common intention" for the commission of the offence, section 149 of the Penal Code is essentially a vicarious liability for being a member of an unlawful assembly with the "common object" for the committing the offence. These two offences are not of the same nature. An accused charged under sections 302/149 of the Penal Code, along with others, cannot be convicted under section 34 of the Penal Code without framing any charge there under. Abu Talukder Vs. The State 7 BLT (HCD)-54 Section-84 read with Evidence Act, 1872 Section-105 If the defence is one of insanity as envisaged under Section 84 of the Penal Code and under section 105 of the Evidence Act, the onus to establish such a plea is definitely on the accused. True it is that it the accused who has to raise the plea insanity and establish it during trial but it the prosecution who had to take the initiative to bring all relevant facts and special circumstances, if any, into light for ends justice and fair play, which were in existence prior to the commission of the crime. Nikhil Chandra Haider Vs. The State 10 BLT (HCD)-60 Section- 96 Exercise of the right of private defence comparing the injuries received by deceased and accused Sayed we find both received similar injuries in nature Sayed's injuries were graver, but S survived and unfortunately Ruhul E died. Looking at the injuries, the impression gained is that both assaulted each other they used dangerous weapons. According to the doctor P. W. 9 death caused due haemorrhage resulting from the injuries, therefore hold that the accused exercised his right of private defence such he is entitled to get the benefit section 96 of the Penal Code. S. Rahman & Ors Vs. The State 4 BLT(HCD)-121 Section-100 Right of Private Defence The evidence in the case must be such that the informant party was carrying on or was about to carry on an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandker Saiful Islam Vs. The State 6 BLT (AD)-84 Section-109 Section 109 of The Penal Code enjoins that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. The State Vs. Md. Ershad Ali Sikder & Ors. 12 BLT (HCD)-125 Section-119 Concealment of the existence of a design to commit such offence by a public servant by any act or illegal omission is a punishable offence under section 119 of the Penal Code. The State Vs. Md. Zahangir Alam 14 BLT (HCD)-156 Section-120B read with Evidence Act, 1872 Section-10 Conspiracy—Evidence of action or statements made by one accused —use against other accused Per M. Ruhul Amin, J: In a case of conspiracy there must be prima facie evidence that a person was a party to the conspiracy before his act can be used against his co-conspirators. A conspirators acts and declarations are admissible against other conspirators on the same principle as the act or declarations of an agent are receivable against his principle. Strict proof of conspiracy is not necessary. The provision of law is that there should be reasonable ground to believe that the prisoner and the persons whose acts, statements or writings are sought to be given in evidence have conspired to commit an offence, Section 10 of the Evidence Act is intended to admit evidence of communications between different conspirators while the conspiracy was going on with reference to the carrying out of conspiracy, but it is not intended by the law as in section 10 of the Evidence Act to admit in evidence the confession of a co-accused, and put it on the same footing as communications passing between the conspirator or between a conspirator and other Evidence of declaration acts or writings of a conspirator is admissible against other conspirators on the principles that the thing done, written or spoken was something done in carrying out the conspiracy and was receivable as a step in proof of conspiracy. Criminal courts, on less than Civil Courts, exits for the administration of justice, and courts of both descriptions have inherent power to mould the procedure, subject to the statutory provisions applicable to the matter in hand, to enable them to discharge their functions as courts of justice. From this point of view that the overt acts may properly be looked to as evidence of the existence of a concerted intention, indeed, the conspiracy is usually closed bound up with the overt acts, because in many cases it is only by means of the overt acts that the existence of the conspiracy can be made out. The gist of offence of conspiracy lies not in doing the act or effecting the purpose for which the conspiracy is formed, not in attempting to do any of the acts nor inducing others to do any of the acts nor inducing others to do them but in the forming of the scheme or agreement between the parties conspiracy is a matter of inference reduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose common between them. The offence of conspiracy under section 120B of the Penal Code is one which requires detailed and specific proof against each other of the accused that he individually participated in a particular design to do a particular criminal thing. In order to establish the charge of conspiracy the prosecution has to prove an agreement between the persons charged to do an illegal act. Agreement can be inferred from over acts and conduct. If it is proved that persons charged pursued by their acts the same object. One performing one part and the other performing another part with a view to attaining the object they were justified. The bare fact of associations with persons who were party to a criminal conspiracy is not of itself a sufficient foundation for the conviction of that person on a charge of conspiracy. There must be something to show that the association was of a suspicious character. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct evidence or by circumstantial evidence. The law requires specific proof against each of the conspirators participating in particular design to do a particular criminal thing. Unless a detailed and specific proof against each of the accused that they participated in a particular design to do a particular thing has been established, there can be no conviction under Sec. 120B. It is going a little too far to say that since they were all together they must have had a common object therefore they must have previous)}1 come to an agreement amongst themselves to commit the crimes. Mere evidence of association is not sufficient for an inference of conspiracy. In a case of criminal conspiracy it is not necessary to prove that a conspirator was aware to all the acts his fellow conspirators committed in pursuance of the conspiracy. Since conspiracy is often hatched up in utmost secrecy it is impossible! to prove conspiracy by direct evidence. It] has often than not. to be inferred form the acts,! statements and conduct of the parties to their conspiracy, Thus if it is proved that the! accused pursued, by their acts, the same object by the same means one performing one part of the act and the other part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the courts is at liberty to draw the inference that they conspired together t effect the object, It should, however, he remembered that where there is no direct evidence, for example through the evidence of an approver, and the case for the prosecution is dependent on circumstantial evidence alone, it is necessary for the prosecution to prove and establish sue circumstances as would lead to the only conclusion of a criminal conspiracy and rule out the theory of innocence. The prosecution is required to prove the charge of conspiracy by cogent evidence, direct or circumstantial. Per M. Fazlul Karim, J: From the character of the crime conspiracy, there may not be any dir evidence to establish the same but certain, specific facts, circumstances and material or record may lead such inference which leads to irresistible conclusion the occurrence was due to conspiracy who has been hatched up by different person different places. Per A.B. M. Khairul Haque, J: The ingredient of the offence of criminal conspiracy are as follows : I. There must be an agreement between two or more persons, a meeting minds, nor mere consensus. II. The said agreement is for doing an illegal act or by an act by illegal means. A criminal conspiracy by its very nature is of secretive in character. There would hardly be and direct evidence of the evil design of the conspirator. The conspiracy can only be inferred from the circumstances and gathered from the depositions of the witnesses. It appears from the evidence on record |hat the entire Army, the Navy, the Air Force were loyal to the Government, only the troops from the 1st Bengal Lancer Regiment and 2nd Field Artillery Regiment ted by a handful of disgruntled officers committed the dastardly crime (P.W. 44, 45) Those disgruntled officers were also alive to such a threat to them. They were aware of the presence of Rakhi Bahini, the BDR, and the Police also. As such they took two steps immediately after the killings. Major Rashid rushed to the house of P.W. 44 Col. Safyet Jamil, Commander 46 Brigade and told him, not to take any action in respect of killing of the President of Bangladesh, more in the tone of command than in submission and the show of strength exhibited by Major Farook when he appeared with 4 (four) tanks in the Head Quarter of 1st Bengal Regiment. The purpose was to demoralize the Brigade (P.W. 44) and it had the desired result. The top brass of the Army was stunned and so much frozen that no action could immediately be taken by them. Although three infantry battalions remained 'stand to' in the meantime, Major Dalim started his announcements on the Radio about the murder of the President and taking over of power by the Army under the leadership of Khondaker Mostaq. Brigadier Dastagir from Chittagong wanted to declare on the Radio that they would protect the Constitution and defy the Government under Khondaker Moataq (P.W. 47) in his cross examination). This was also a real possibility, not only from Chittagong but from other places also. It appears that this aspect was not overlooked by the accused persons. That was the reason the three Chiefs of the Army, Navy and Air Force were forced to read their oath of allegiance on the Radio, followed by the BDR and Police Chief. It may be noted that rushing of all the accused to the Radio Station was not a mere coincidence but it had also an important purpose on the canvass of the grand scheme. The conspirators knew very well that mere killing of the President and others would not do. The armed forces and the people at large were also made to realize that the entire armed forces were behind the conspirators and the new Government. That was why the plan in respect of the Radio Station was so very important Major Ahmed Sharful Hossain (A-7) was the first person to reach the Radio Station with his tank at about 4-30 in the morning of 15th August and took control of the Radio Station (P.W. 14) Major Shahrior (A-2) went to the Radio Station at about 5-30 A.M. Major Dalim (A-6) rached there at about 5-30 so also Major A.M. Rashed Chowdhury (A-8) Captain Abdul Majed also reached the Radio Station at that time. Major Shahrior (A-2), Major A.M. Rahsed Chowdhury (A-8) Major Ahmed Sharful Hossain (A-7), Major Abdul Majed did not fire a shot or were engaged in any overt act but they by being indoctrinated by the fiery speeches of Major Farrok (A-l), Major Rashid (A-4), Major Dalim (A-6) allowed themselves to be brought into the web of conspiracy in furtherance of their common intention to achieve the objects of the said common intention, went to the Radio Station in order to stand and wait and also to lend their services to the other conspirators as and when needed. Otherwise those abovementioned 4 (Four) officers had no reason or plausible explanation to be in the Radio Station in the early morning at 4-30 to 5-30 on 15th August. The defence on behalf of Major Shahrior that he was on an Interned Security Duty (ISD) or that he got a fresh appointment on that early morning are all myths and abhorrent of common sense. Similarly, Lt. Kismat Hashem and Lt. Nazmul Hossain Ansar went out of the Cantonment with their tanks. Lt. Kismat Hashem was seen in the house of the late President and Lt. Nazrul Hossain in the bend of the old Race Course or in front of the Radio Station. They were in the night parade, as such knew about the purpose of deployment of the tanks, Where they went was immaterial, the moment, they took their tanks out of the Cantonment, they were acting in furtherance of the common intention of the conspiracy no matter where they went and where they were. The purpose of deployment of tanks was to show the strength of the conspirators and also to terrorize the people. Both the objects were successfully achieved. They even terrorized the 46 Briagade (P.W 44) not to speak of the common people. The defence on behalf of Major Ahmed Sharful Hossain (A-7), Lt. Kismat Hashem (A-12 and Lt. Nazmul Hossain Ansar that they move the tanks towards the city under orders of their commanding officer is not defense. They were present in the parade ground and heard the speeches. So the purpose was no secret. The 15 Years Digest troops were armed, the tanks were made ready for action, anybody would understand that this was not training in and around the city. They on realizing the purpose could have pulled themselves out of the mission, instead, they went along with it in furtherance of the common intention, Similarly, the firing of the cannon shells on the house of the then President on the orders of Major Mohiuddin Ahmed (Artillery) (A-3) shows his direct participation in the murders of the victims The State Vs. Lt. Col (Retd) Farrok Rahmam & Ors. 9 BLT(Special Issue 2001) Section-120B Petitioner Mamun along with oth petitioners, held meeting and conspired blast bomb upon the Judges and others « the administration resulting in the murder the two Judges and petitioner Mamun bei one of them, his action comes within tK mischief of offence punishable und Section 120B of the Penal Code as well. Shaiakh Abdur Rahman & Ors Vs. The State 15 BLT (AD)-326 Section- 120B/302/34 Convicts stated that it was their object establish, what they believes and recogni as, Islamic rule. They also believe that f prevalent legal system is anti Islamic or th call it "?????? ???" They are so committed their cause that they have repeatedt declared it during trial at least twice and least one of them (Amzad) felt proud killing the two judges. They are so fir rather so fanatic in their conviction, rejecting the prevalent legal system that did not even feel the necessity to de them by engaging a lawyer perhaps be they believe that a lawyer is a prodi what they term as "?????? ???" It indicates that they are devoid of the minimum level of perception and learning and more so of information about a modern state, its institutions and functionaries and the legal system as a whole. They are so blind that they do not have any interest in exploring the benefits of engaging a lawyer in the prevent legal system even in the midst of facing the death penalty. Their thinking is so narrow that they considered it to be a just action to kill two individual judges so as to abolish the prevalent legal system and thereby to establish or to facilitate the establishment of what they believe as the Islamic rule -The condemned convicts knowingly, and deliberately made the criminal conspiracy and in furtherance of the common intention generated from the conspiracy, they caused the bomb blast leading to the death of the two Judges. The prosecution could prove its case beyond al 1 reasonable doubt. Therefore we hold that the condemned convicts are guilty of the charges under section 120B and 302/34 of the Penal Code The State Vs. Shaiokh Abdur Rahman & Ors 14 BLT (HCD)-528 Section-147 All the accused persons assembled in the place of occurrence to attack the informant, and though only accused Abdul Khaleque attacked the informant, the other accused persons are also guilty under Section 147 because every member of any unlawful assembly is guilty irrespective of whether he had any overt act or not. Bazlur Rahman Howlader & Ors Vs. The State 7 BLT (HCD)-66 Section-147/326 and Section- 147/323 The learned Single Judge of the High Court Division was not correct to find that conviction under Sections 147 and 326 or 323 cannot go together. Zahid Iqbal & Ors. Vs. The State 7 BLT (AD)-154 Sections- 147/447/427 Learned trial Judge came to the conclusion that was in fact trespass into the land of the complainant. But no clear finding in this regard- The learned Judge in revision while accepting the findings of the Courts below also found that the accused petitioners could not produce any scrap of paper in support of their specific defence of auction purchase- Hence, the impugned judgment calls for no interference. Ahad Ali Miah & Ors Vs. Mushtahid Alam & Ors 2 BLT (AD)-3 Section-149 The eye witnesses testified that accused respondents No. 1 and 4 inflicted gunshot injuries on deceased Chandu. Accused respondent Nos. 3 and 5 fired guns shots to deceased Suruj and accused respondent No. 2 Abdul Awal assaulted deceased Azimuddin with gunshot. Accused respondent No. 6 Abdur Rahman assaulted deceased Ahamad by his gun-these accused respondents participated in specific overt acts and as such there is no difficulty in finding that the accused persons were guilty of the offence constructively under Section 149 of the Penal Code. State Vs. Giasuddin & Ors. 7 BLT (AD)-108 Section-149 The section creates a distinct and separate offence in the sense it imposes vicarious of constrictive criminal liability of the members of an unlawful assembly for any offence committed by any other member of such assembly in prosecution of the common object of the assembly. In order to make any other member of the assembly constructively liable for the offence committed by any other member of such assembly, it must be committed 'in prosecution of the common object of such assembly' or as member of such assembly he must be posted with the knowledge that such offence would likely to be committed in prosecution of that common object. The section does not require all members of the unlawful assembly to do some overt acts while overt act and active participation may indicate a common intention on all the persons perpetrating the crime. When the above conditions are fulfilled each member of such unlawful assembly becomes principal offender with each and every one of the assembly who committed the offence because of his presence as member of such assembly. Monsur Fakir & Ors. Vs. The State 11 BLT (HCD)-250 Section-149 We are of the view that though there is evidence that only four of the appellants actually caused injury to the victim, the other three being members of that unlawful assembly are equally liable. Moreover, there is evidence to show that these three caused injury to those who came to the place of occurrence to rescue the victim. Haider Ali & Ors Vs. The State 12 BLT (AD)-196 Section-149 Section 149 of The Penal Code enshrines that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object , every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. The State Vs. A.S.I. Md. Ayub Ali Sarder & Ors 12 BLT (HCD)-142 Section-149 Mere presence at the scene does not make one a member of unlawful assembly unless it is proved that he shared in common] object unlawful assembly. Assemblage of many by forming unlawful assembly by going to a place and causing death of a person or persons by one or some members of the assembly all persons present cannot be held guilty of forming unlawful assembly with the object of causing death and for proving the offence it is imperative for the prosecution to prove that common object all the members of unlawful assembly will to cause death. The State Vs. A. S. I. Md. Ayub Ali Sarder Ors. 12 BLT (HCD)-142 Sections-161/109 Read with Section- 5 (2) of Act II of 1947 Case was started under section 161/1 read with section 5(2) of Act II of 1947 police report, it is exclusively triable by special Judge under the Criminal Amendment, 1958 and the le Magistrate has no jurisdiction to try the under the general law and as such the trying Magistrate acted illegally and without jurisdiction in passing the order of acquittal- liable to be set aside. Abdul Aziz Khan & Ors Vs. The State 2 BLT (HCD)-94 Section-188 In the instance case, no legal proceeding was drawn up and not prohibitory or also passed by the learned Magistrate. He simply attached the case land and appointed a receiver and therefore, there is no order promulgated by the public servant concerned nor is there any prohibitory order directing the petitioners to abstain from cutting away paddy or from entering into the case land. A prosecution under this section sould not be launched unless all the elements necessary for drawing up proceeding are present but in the instant case, the ingredients are totally absent. In this case, a complaint was made by the Receiver alleging inter alia, that during the person between 29.11.1992 and 09.12.1992 petitioners have stolen away paddy grown in the case land. The allegations made therein, even if, they are taken to be true, do not satisfy the ingredients of section 188 of the Penal Code. Afsar Ali Khan & Ors Vs. Md. Lutfar Rahman & Ors. 8 BLT (HCD)-323 Section - 201/34 Both the courts below concurrently found that the inmates of the PO house committed the murder of Chapa entering into her room on the night. True, the prosecution could not angle out them in so many words. From the evidence of PW 1 Bimal Kumar Das it appears that certain alamats were seized from PO house including a blood stained lungi of the accused Zahirul Alam Kamal. The accused Zahirul Alam Kamal has not given any explanation in the matter. In view of positive evidence that the blood stained lungi was that of accused Zahirul Alam Kamal, according to us, he cannot be solved of the responsibility of murder of (Chapa. Regarding two other accused-respondents however we do not find any such incriminating element to connect them with the murder though they, as well, are found responsible for causing disappearanceof the evidence. In such view of the matter we feel inclined to give benefit of doubt to the two other respondents-Nasiruddin Jamal and Zillul Bari so far as the charge against them under Section 302/34 of the Penal Code is concerned. They however cannot be absolved of the charge under Sections 201/34 of the Penal Code. The State Vs. Khandker Zillul Bari 14 BLT (AD)-91 Section-237 Law is well settled that if an offence under a section is proved though not charged accused person can be very much convicted for the offence proved and the same is permissible on the strength of the provision of section 237 of The Code. The State Vs. Md. Ershad Ali Sikder & Ors. 12 BLT (HCD)-125 Section-295A An Article in the caption "Mysterious women threatening men, bolstering stock images of the Muslim World" by CARIA POWER with Picture /Calligraphy therein published in the weekly Magazine, the News Week is published and printed from Singapore and other parts of the World —we are of the view that the aforesaid Article containing the writings and the Picture/ Calligrphy (marked as Annexure Z by us) is offensive to the feelings of the Muslims of the country and it has been made with deliberate and malicious intention of outraging their religious feelings as a result of which offence punishable under section -295A of the Penal Code has been committed. Junaid K. Doja Vs. The State & Ors 9 BLT (HCD)-293. Section-314 Part-1 The prosecution has been able to prove beyond reasonable doubt that the appellant with intent to cause miscarriage of the deceased got a piece of root of plant, Material Ext. 1, placed in the uterus of the deceased by accused Ful Baru, which resulted her death. The deceased wife had consent in such act of the accused husband. Therefore, we find that the appellant committed an offence punishable under section 314 part I of the Penal Code. His act does not attract part II of the same section. Md. Raqib Sheikh Vs. The State 15 BLT (HCD)-57 Section-320 Ingredients —grievous hut —in the instant case though dagger were used by the two appellants —Md. Shamir @ Shamir Khan and Shamsul Haque @ Shamsul Khan but none of the injured persons were in the hospital for twenty days and there is no evidence that the injured person failed to pursue their normal avocations for twenty days. P.W. 3 claimed that the sustained injury in the hand and was a hospital for seven days. The medical report has also not supported the prosecution allegation that these two appellants caused grievous hut as defined in section 320 of the Penal Code. Md. Shamir @ Shamir Khan & Anr. Vs. The State 11 BLT(AD)-6 Sections-320,325, 326 Only the opinion of the doctor is not sufficient to hold that an injury is grievous hurt, Doctor did not give any reason as to why he considered some injuries are grievous hurt, Court did not give any independent finding on which injury in grievous hurt and which in simple hurt to convict the accused under section 325/326 of the Penal Code. The court must come to a definite finding with reference to the evidence on the record about the nature of injury. An injury is grievous hurt if it falls within the meaning of grievous hurt as given in Section 320 of the Penal Code. There is no evidence that any of the injuries endangered the life of any of the victim. There was no fracture; the victims were discharged from the hospital after treatment of several days. There is no evidence to show that any of the victim suffered severe bodily pain for a period of 20 days or unable to follow his ordinary pursuits. So the conviction under Sections- 326 and 325 of the Penal Code is not proper and legal. Bazul Rahman Howlader & Ors Vs The State 7 BLT (HCD)-66 Section - 323 Nature of hurt each of them allegedly caused does not disclose their intention to cause death, nor such bodily injury which might likely to cause death. The hurt each of them allegedly caused was simple. So at best their such act of giving single lathi blow each might attract section 323 of the Penal Code. In the meantime they have already served out sentence of rigorous imprisonment more than five years. Abul Kalam & Ors. Vs. The State 14 BLT (HCD)-214 Section-324 Acquittal from the Charge -Misreading and non-reading of the evidence It appears from the evidence of PW-1 that there are about 2/3 hundred inhabitants in his village; that the house of Mollah Bari is 250/300 squire feets far from the place of occurrence where about 200 people reside. But none of the neighbor of that Mollah bari are also witness of this case, -the medical certificate cannot be taken into evidence as the doctor was not examined. It is also found that no alamats like wearing apparels of the victims with blood stained cloths were sized to prove the alleged occurrence by the prosecution -Held; impugned judgment and order is based on conjecture, surmise, hypothesis and that the impugned judgment is not well reasoned basing on the judgment and order suffer from misreading and non-reading of the evidence which call for the interference by this court. I find merit in this rule, which must be succeeded. Nizamuddin & Ors Vs. The State & Anr. 13 BLT (HCD)-460 Section - 324 In proof of charge of section 324 of Penal Code it is to be proved that the accused caused injury by means of any shooting, stabbing or cutting, or by an instrument which used as a weapon of offence, is likely to cause death, or by means of fire etc. or by means of any poison etc. or by means of any substance which it is deleterious to the human body to inhale or by means of any animal. Sharafat Mondal & Ors. Vs. The State & Ors14 BLT (HCD)290 Section-325 In the absence of the evidence of the said victim as well as of the doctor who allegedly gave him medical treatment and also for non production of the medical certificate alleged to have been given by the doctor and produced before the I.O. who has also not been examined by the prosecution, and for that prosecution does not inspire necessary confidence in the case of a charge under section- 325 of Penal Code involving grievous hurt. Abu Shama Vs. The State 3 BLT (HCD) 53 Section-326 The main ingredient for sustaining conviction under Section-326 of the Penal Code is that there must be grievous hurt—From the evidence of P.W. 8 and! P.W. 1 we are of the view that though the doctor deposed that the injuries he found were grievous in nature but those injuries are not grievous as contemplated under] Section 320 of the Penal code, In view of the nature of the evidence we hold that the; prosecution failed to prove that P.W. m sustained grievous hurt. But the fact remains; that the prosecution witnesses consistently and uniformly proved that these appellants caused hurt on PW1 by using weapons of offence and from the evidence on record we are of the view that these appellants have committed the offence punishable under Section 324 and not under Section 326 of the Penal Code. Aminul Islam @ Ranga & Ors. Vs. The State 8 BLT (AD)-129 Section-326 While the appeal of the accused Shahid alias Shahidul Islam Howladar, in respect oil his conviction under Section 326 of the Penal Code is also dismissed since there is no legal impediment to convict an accused both under section 302/34 and under S ection326/34 of the Penal Code if ingredients of such offence is found present on evidence. But his sentence of rigorous imprisonment for 10 years under section 326 of the Penal Code shall run concurrently along with his conviction and sentence under section 302/34 of the Penal Code. Mojibor Rahman Talukder & Ors. Vs The State 10 BLT (HCD)-465 Section- 326A The offence of gouging out eyes falls with section 326A of the Penal Code. Delwar Hossain Vs. The State 4 BLT (HCD)-144 Section-362 Abduction- there is no age limit given of a person who may be subject of abduction- the question of age was immaterial having regard to the offence abduction. Md. Jabed Ali Vs. The State & Ors 6 BLT (AD)-248 Section-364 A lot of material omissions and contradictions in the evidence of the P. Ws. in respect of the place, time and the manner of occurrence- and not to speak of the case of abduction or kidnapping for the purpose of murder of the victim and/or for the {purpose that he might be so disposed of as to be put in danger of being murdered- for non-production of the victim, the doctor who ;allegedly gave medical treatment to the said victim, the I. O. the local chairman and some other independent witnesses an adverse presumption against the prosecution case ought to have been drawn by the trial court- the prosecution has failed to prove the charge under section 364 of the Penal Code against the appellant. Abu Shama Vs. The State 3 BLT (HCD)-53 Section-366A Custody of the minor girl- Victim girl in her statement under section- 164 Cr. P. C. statement supported the prosecution case that she was kidnapped forcibly but subsequently stated before the learned Sessions Judge that she willingly married the kidnapper/abductor and willing to stay in the house of the accused after- Sessions Judge found that the choice of the girl in the matter of her custody should receive due regard as she was found to be 16/17 years on 23.9.92- High Court Division examined the victim girl who expressed her opinion in presence of her parents to reside in the house of the father of the accused- parents custody by the victim girl refused- by the hon'ble High Court Division which did not disturb the finding of the learned Sessions Judge. Faizul Haque Vs. Nurul Islam and Others 1 BLT (HCD)-16 "It appears that victim girl Rashida Begum initially in her statement under section 164 Cr.P.C. on 25.9.92 supported the prosecution case that she was abducted forcibly but subsequently she stated before the learned Sessions Judge that she had willingly married the accused Alal and she is willing to stay in the house of accused Nurul Islam the father of accused Alal where she had already gone. The learned Sessions Judge allowed Rashida Begum to stay in the house of accused Nurul Islam father- in- law of the girl particularly because he found that in the matter of her custody her choice should receive due regard since she was found by the doctor to be between 16 and 17 years on 23.9.92". Faizul Haque Vs. Nurul Islam and Others 1 BLT (HCD)-16 "We have seen the girl and asked her opinion. She looked quite mature and gave her definite opinion to remain in the house of her father-in-law i.e. the father of accused Alal where she is already residing. She gave the opinion in presence of her parents. In such circumstances, we do not find it expedient to disturb the impugned order of the learned Senior Special Tribunal till such time as the trial is concluded". Faizul Haque Vs. Nurul Islam and Others 1 BLT (HCD)-16 Section-376 Leave was granted for reconsideration of the evidence on record as a great doubt as to the truth of the prosecution case arises in the facts and circumstances of the case and consequently to examine if the learned judges of the High Court Division erred in law in not granting benefit of doubt to the accused appellants in the case. Md. Saidur Rahman Neoton and Ors.Vs. The State 1 BLT (AD)-20 In this case, the material evidence being only of the victim woman P. W. 4 Salma Begum, it becomes necessary for us to consider as to whether she was telling the truth connecting the appellants with the offence of rape on her and further whether the evidence of this woman needs corroboration either direct or circumstantial implicating the accused with the offence. Md. Saidur Rahman Neoton and Ors. Vs. The State 1 BLT (AD)-20 (a) Benefit of doubt in a rape case-Medical evidence- when rape is committed on a married woman, the fact of such offence is normally known to the close relations but in this case the allegedly raped woman did not narrate the occurrence to her husband or to her parents- conduct of the woman is highly improbable. Md. Saidur Rahman Neoton and Ors. Vs The State 1 BLT (AD)-20 (b) Consideration of evidence of victim woman? Other surrounding of facts and circumstances reliance on the sole evidence of the victim woman and her statement being not in accordance with the probabilities of the case not corroborated other materials is not tenable in law- Be of doubt goes to the appellants. Md. Saidur Rahman Neoton and Ors. Vs The State 1 BLT (AD)-20 (C) Medical evidence is no corroboration of rape in the present case. "We h already indicated above, that in the facts of the present case, the Medical evidence record is no corroboration at all in the n of circumstantial evidence that rape committed on P. W. 4 Salma Begum, must say that in considering the question corroboration the learned Judges of the Court Division wrongly relied on the fact of disclosure by the prosecutrix after occurrence to these witnesses as sufficient corroboration of the evidence of rape, truly speaking this is no corroboration in eye of law. Md. Saidur Rahman Neoton and Ors. Vs The State 1 BLT (AD)-20 (d) Corroboration in the present must be by independent evidence Corroboration in such a case must independent evidence, that is to say: some additional evidence either, direct circumstantial of some material facts go to prove that not only a crime of rape committed but also that the appellants connected with the crime charged. I evidence of these witnesses as to what the victim woman told them after the alleged occurrence is no corroboration in the eye of law. Md. Saidur Rahman Neoton and Ors. Vs The State 1 BLT(AD)-20 (e) Evidence of the victim woman P. W. 4 Salma Begum was unsatisfactory in the present case. Md. Saidur Rahman Neoton and Ors. Vs The State 1 BLT(AD)-20 (f) Rule of practice for insisting corroboration of the statement of the prosecutrix- rule of caution than the learned Judge has in mind in dispensing with the necessity of corroboration by independent evidence in a particular case. Md. Saidur Rahman Neoton and Ors. Vs The State lBLT(AD)-20 Section-376 The offence as committed by accused Tofazzal Hossain has further finds corroboration from the Medical report, namely the report of Dr. Nasrin Haq (P. W. 1) who found marks of violence on the person of victim and opined that this is a case of rape and the evidence of the witnesses has clearly established that it is accused Tofazzal Hossain who committed the crime of rape on the victim Kazal. The learned Judge has rightly found guilty of the offence under section 376 of the Penal Code. Tofazzal Hossain Khan Vs. The State 5 BLT (HCD)-185 Section-376 Jumping the bail — Prosecution Failed to Prove the charge — in the instant case, the High Division maintained the order of conviction and sentence of this appellant on the ground that earlier his bail was cancelled by the High Court Division and directed him to surrender to his bail bond but he failed to comply with the same and as such became a fugitive from justice. Held: for jumping the bail the appellant should not have been convicted for the main offence under section 376 which was not proved against him and other accused and all other co-accused were acquitted. Moreover, the appellant since surrender has already undergone imprisonment which is enough punishment for jumping the bail. Mizanur Rahman Vs. The State 11 BLT (AD)-26 Section-376 Read with Section-4(c) of the Cruelty to women (Deterrent Punishment) Ordinance, 1983 Sexual intercourse by full brothers and bhaista- Improbable. Accused Bazlu and Hameyet are the full brothers and Belayet and Bedal are their bhaista. So it was highly improbable that all these four together commit sexual intercourse on her, more so when they were not professional or hardened criminals and that Bazlu wanted to marry her. Bazlu Talukder & Ors. Vs. The State 4BLT (HCD)-210 Section-379 Theft and bonafide claim of right A co-sharer in exclusive possession of a parcel of land is entitled to maintain his possession therein. Before effecting partition by metes and bounds co-sharers or co-owner shall have no right to disturb his possession, not to speak of cutting and taking away his crops. In such a case the bonafide claim of right in the case land is no defence against or charge under section 379 of the Penal Code for cutting and taking away crops grown by the co-sharer in possession. Nasir Uddin Shaha & Ors Vs. Nazrul Islam & Ors. 6 BLT (HCD)-214 Section-380 and 411 Theft and retention of stolen property. An accused convicted for theft under section 379 or 380 of the Penal Code cannot be convicted and sentenced under Section 411 of the Penal Code for retention of the stolen property in respect of object of the theft convicting and sentencing a theft both for theft and for retention of the stolen property practically means double punishment for one continuing offence. Md. Nabab Ali Vs. The State 9 BLT (HCD)-361 Section-391 The First Information Report and the charge sheet though not substantive evidence can be looked into for better appreciation of the prosecution case and from the charge sheet which is in the paper book it is found that the I.O. categorically stated that no valuables or articles were taken away by the dacoits from the statement of the witnesses he found that it was a case of murder simplicitor and during his deposition before the court as P.W. 30 Shah Akil Uddin O.C. admitted that "?????? ??????? ??????? ????? ??? ???" Thus in absence of any evidence of dacoity by any of the witnesses and in absence of any recover of any article taken away during the dacoity from the possession of any of the accused person it can be safely said that he prosecution has hopelessly failed to prove the case of dacoity. The State Vs. Md. Abdul Ali & Ors. 8 BLT (HCD)-74 Section- 395 Absconding- Accused is not F. I. R. named further no incriminating materials was recovered from his possession. Besides the informant does not say that the accused along with other accused persons committed dacoity upon him in the night of occurrence mere absconding of an accused without any] corroboration evidence as to the offence alleged to have been committed cannot be basis for conviction and as such the conviction] and sentence is not sustain in law. Sanaullah Vs. The State 5 BLT (HCD)-165 Section -396 The first essence of an offence under the section is that the dacoity is the joint act the persons concerned and the second essence of the offence is that murder committed in course of commission dacoity in question. Proof of murder would consequently consist of proof of committing culpable homicide . It would not be open to the accused to plead that he or they did not know that the cumulative effect of their conjoint violence would result in death. The State Vs Md.Gaus Meah @ Rana & Ors. 13 BLT (HCD)-136 Section -396 Benefit of doubt The appellant had been convicted for his complicity in that offence on the basis of the evidence of recognizing him by P.Ws. 3 5 at the time commission of dacoity and confession of co-accused Nazimud P.W.3 said that at the time of dacoity in hut he recognized the appellant along with others by the light of night. It is understood what he meant by 'light night'. It is in the evidence of P.W.7 that night of occurrence was dark. P.W.3 did support presence of any light in his room. In absence of any light in the room recognition of the appellant and others by him was practicable P.W.5 said that he recognition the appellant and others at the time commission of dacoity in his —by the light of a cherag. But no cherag, the means of his recognition was seized by the Investigating officer. So presence of burning cherag in the hut of P.W.5 at the time of commission of dacoit therein is doubtful and accordingly recognition of the appellant P.W.5 had not been established free from doubt. Moreover P.W.s 3, 4 and 5 did not disclose about such recognition to anybody immediately after the occurrence. Had they recognized the appellant and others at the time of commission of dacoity in the respective huts and disclosed that fact after the occurrence it word find place in the F.I.R. So recognition of the appellant and others by P.Ws. 3 and 5 is subsequent embellishment, P.Ws. 3 and 5 themselves also did not support one another about recognition of the appellant and others. None of other inmate P.Ws of the — -house including the informant supported recognition of the appellant and others by P.Ws.3 and 5. So recognition of the appellant by them is not credible. Alamgir Vs. The State 14 BLT (HCD)-395 Section- 398 Appellants three co-accused and another were caught red handed while committing dacoity- in the impugned Judgment the learned Assistant Sessions Judge stated that this appellant i. e. Jahangir Alam obtained bail from the Upazila Magistrate and then absconded and that the dacoit who become unconscious due to mass beating was the appellant Jahangir Alam. But in fact appellant Jahangir Alam was never absconded till he was excluded in the charge- sheet and that the dacoit who become unconscious could not be the appellant as that dacoit died subsequently. We find it is the tragedy of errors that the appellant an innocent person is languishing in jail for no fault of his own¬ appeal is allowed. Jagangir Alam Vs. The State 4 BLT (HCD)-172 Section-399 and Section 402 Difference between section 399 and section 402 The difference is that section 402 attracts when there is merely assembly of at least five persons for the purpose of a dacoity without other preparation, whereas, when some additional step is taken in the course of preparation section 399 attracts. Section 402 contemplates a stage when the whole project still lies in the realm of design and intention without there being any intent to give a concrete shape to the intention, but whenever someone of the persons assembled advances a step further by doing act amounting to preparation section 399 is then brought into play. Bura Yunus & Ors Vs. the State 15 BLT (HCD)-383 Section-406 In order to sustain conviction under section 406 of the Penal Code there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged and in the instant case the petitioner though took the loan to set up the machine from the Krishi Bank out never repaid the amount remaining the dues to be unadjusted, rather disposed of the mortgaged machine without the permission of the Bank. Md. Kalimullah Topadar Vs. The State & Anr 11 BLT (AD)-128 Section-409 Accused appellant was in charge of several stores- from the examination of accused- appellant under section 242 of the Code of Criminal Procedure it transpires that the allegation was of a general nature, namely, misappropriation of various store properties, without specifying from which store the misappropriation took place. But in the examination under section 342 of the Code of Criminal Procedure it is generally stated that while he was store keeper of Chalna Port misappropriation took place in the said store without specifying which one There is therefore lack of uniform evidence that all the five stores then existing at Khalishpur were under the charge of the accused- appellant. P. W. 2 Shafiqur Rahman clearly stated that the accused-appellant was in charge of general store (Shed No. 1) and Cement Store. There is no reliable evidence on record that the accused-appellant was also in charge of Shed No. 2, the mechanical store from where that alleged misappropriation took place-Conviction and sentence passed on the accused- appellant is set aside. Sheikh Abdur Rouf Vs. The State 7 BLT (AD)-249 Section-409 The main ingredients of Section 409 of the Penal Code is misappropriation to commit criminal breach of trust in respect of property over which he had dominion as Public Servant. From the materials on record it appears that the accused appellant had no criminal intention to commit such criminal breach of trust in respect of the property which was held within his dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding over his financial difficulties. Mala fide intention was not proved by legal evidence, so the appellant is entitled to be acquitted as of right. A.K.M. Mohiuddin Vs. The State 7 BLT (HCD)-37 Sections- 409 and 109 read With Prevention of Corruption Act, 1947 Sections 2 and 6 and (10) Misappropriation of Postal Money order Tk. 1000/- collection of prosecution case alleged- Evidence on record proved the modus operandi of the appellants that they had misappropriated Tk.4900/- in several ways through delivery list showing that the amount was spent by delivery-Anti-corruption Department investigated the case- Fabrication of false documents in the gambit of misappropriating Tk. 4900/- -Considering the evidence on record on paper sifting off documentary evidence, the finding of guilt by] Divisional Special Judge does not suffer from] any infirmity- Conviction up held. Syed Nazrul Islam & Others Vs. the State 1 BLT (HCD) -64 Section-409 and 109 read with Prevention of Corruption Act, 1947 Section-5(2) The decision of buying two Air buses was taken after Processing the Proposal in this behalf through various Stages on due deliberation Starting from Elect Planning Committee of Bangladesh Biman Corporation of the Council Committee — on receipt of the recommendation of the council committee, the accused petitioner finally approved the decision for Purchase of the aforesaid two Air Buses — Held; I very initiation of the Criminal proceeding as well as the continuance of the s against the accused persons including accused petitioner would amount to an abuse of the process of the law as well as the Court and it is therefore necessary to quash proceedings to secure the ends of Justice. Khaleda Zia, M.P Vs. The State 11 BLT (HCD)-466 Section- 409 read with 109 Although High Court Division based its decision in respect of the appellant while dismissing his appeal on the evidence of P.Ws 1,2,3,5 and 6 but from the discussions of the evidence of the said witnesses, as made above, it is seen in fact there is nothing in their evidence to implicate the appellant in the incident alleged by the prosecution and thereupon appellant and others were tried for being involved, as claimed by the prosecution, in the incident i.e. removing or stealing of wheat, misappropriation of some quantity of wheat from the total quantity of wheat lifting for distribution among the VGF card holders and stored in Dahia Government Primary School. Md. Fazar Ali Vs. The State 12 BLT (AD)-167 Section-409 read with Prevention of Corruption Act, 1947 Section-5(2) The appellant was given charge of the godoan of the jute seeds who received the same from one Habibur Rahman on 04.04.1983—Held : There may be suspicion against this appellant but suspicion however strong cannot be a ground for holding guilt of an accused. Here is a case where the prosecution half heartedly proceeded with the case. The appellate court failed to notice the gross defects in the case as advanced by the prosecution who have not produced and examined even the cited witnesses most of whom were from department itself. No explanation has also been given for this non-examination—the prosecution failed to prove the charge against this appellant beyond all reasonable doubt Md. Mazibur Rahman Vs. The State 8 BLT (AD)-190 Section- 409 and Section 406 In a case where the charge against an accused person is that of criminal breach of trust, the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he willfully suffered some other person to do so. The prosecution must affirmatively prove these ingredients. Md. Abdul Hye & Ors Vs. The State 15 BLT (HCD)-403 Section -409 read with Prevention of corruption Act, 1947 Section-5(2) There is no bar to the trial or conviction of the offender under two enactments but there is only a bar to the punishment of the offender twice for the same offence. Where the conduct of the accused is an offence under section 409 of the Penal code and also under Section 5(2) of the Prevention of Corruption Act, 1947, he cannot be tried and convicted of both the offence where an act constitutes an offence under two or more enactments, then the offender shall be liable to be punished twice for the same offence under section 26 of the General clauses Act. Md. Abdul Hye & Ors Vs. The State 15 BLT (HCD)-403 Section-411 Dishonestly retaining or receiving stolen property To secure a conviction under section 411 of the Penal Code, the prosecution must prove by reliable evidence that the accused had exclusive possession or domain over the stolen property or he retained it knowing or have reason to believe that it was a stolen property. Md. Afsar Ali Pramanik Vs. The State 8 BLT (HCD)-329 Section-420 Transfer of 15 acres of land to the complainant prior to another transfer to a subsequent transferee was not fraudulent or dishonest transaction within the mischief of cheating as defined under Section 415 of the Penal Code. Remedy of the complainant lies in a civil court, the dispute being of a civil nature. Mst. Nurjahan Bibi & Ors. Vs. The State 2 BLT (AD) 139 Section-420 In the instant case the informant was persuaded to pay taka five lakhs on the assurance of paying back the amount by a certain date and the accused issued a post dated cheque on the day the money was paid with advice to present the cheque to the bank on a certain date. Thereafter on two occasions the date of presentation of the cheque to the bank was deferred on the request of the accused, first by one month and lastly by another fifteen days. After the expiry of this twice extended period, the cheque was presented to the bank on 9.2.95 when it was dishonored and again presented on 27.2.95 when also it was dishonored for lack of fund .It is alleged that after dishonour of the cheque on two occasions when the informant went and demanded back his money, the petitioner threatened to kill the informant. The first information report makes out an allegation that the informant was persuaded by the petitioner to part with his money through a clever device and was ultimately threatened with murder for demanding repayment of the money. The initial intention to deceive appears on the face of the F. I. R. It cannot, therefore, be said that the F .1. R. does not disclose an offence under section 420 of the Penal Code. Md. Nurul Islam Vs. The State 5 BLT (HCD)-208 Section-420 In the case of the offence punishable for the offence of cheating there are two elements namely deception and dishonest inducement to do or omit to do something. In such a case the complainant or the informant would have to show not only that he was induced to do or omit to do a certain act but this inducement or omission has caused or was likely to cause him some harm or damage in body, mind, reputation or property and these are presumed to be the four cardinal assets] of humanity. For proving the offence under section 420 of the penal Code of prosecution must prove the deception of any person, fraudulently or dishonestly inducing such person to deliver any property to any] person or to consent that any person shall] retain any property and intentionally? inducing that person to do not omit to do anything which he would not do or omit if he were not so deceived and such act or omission causes or is likely to cause damage or harm to that person in body, mind,; reputation or property. From the evidence led before the trial court it appears that none of the witnesses deposed that this appellant induced P.W. 2 to execute kabala or to deliver the property to him. It appears that the prosecution has not led any evidence t prove the ingredients of the offence punishable under Section 420 of the Penal Code. The trial court as well as the High Court Division failed to appreciate this aspect of the matter and wrongly held appellant guilty of the offence under Section 420 of the Penal Code. Md. Mohasin Ali @ Mohsin Vs. The State 8 BLT (AD)-210 Section-420 In order to constitute the offence of cheating it must be established that someone is made to part with some property on the promise or representation of the accused to return something in lieu thereof, which the later had no intention to give. The initial intention to deceive must be established to justify a conviction for cheating. Intention of cheating shall have to be gathered from the facts of the case and its surrounding circumstances. Where there is no fraudulent intention of the accused from the beginning, there can be no question cheating. In the absence of mens rea, mere breach of contract cannot constitute cheating. Inability to fulfill a promise or contract does not amount to cheating. Mahbubul Alam Gazi Vs. The State & Anr. 8 BLT (HCD)-358 Section-420 Cheating and dishonestly inducing delivery of property. The initial intention to deceive on the part of the accused must be established to secure a conviction for cheating. Where fraudulent intention of the accused from the very beginning in the disputed deal is not proved, there can be no conviction for cheating. Ordinarily a breach a contract does not entail any criminal liability, unless it is proved that the accused practiced initial deception in concluding the agreement. Sujit Kumer Rudra & Ors. Vs. The State 8 BLT (HCD)-407 Section-420 The essential ingredients for an offence of cheating is that on the basis of false representation, the complainant was deceived and he had no scope to examine the act of deception or false representation of the accused. To hold a person guilty of the offence of cheating, the prosecution must show that the accused had criminal intention. Such a dishonest intention can not only be inferred but it must be proved by facts and circumstances of the case and evidence on record. In the absence of such proof, the accused cannot be charged with guilty of cheating. Alhaj Abdul Kashem Vs. The State 15 BLT (HCD)-227. Sections-441/447 On the facts and circumstances of the case we have not hesitation to hold that the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who despite his protest, carried on the work of construction. So the ingredients of sections 441/447 of the Penal Code have been well established. Mohammad Ali & Ors. Vs. A. F. M. Mazedul Huq khan Lohani & Anr. 8 BLT (AD)-96 Section- 447 & 427 As far as the assessment of evidence is concerned, both the Courts below believed the complainant's case and the High Court Division committed no wrong in accepting the findings of the Court of fact. Causing of mischief having been proved the ingredients of the offence of criminal trespass are also satisfied. It is not correct to say that no criminal action lay merely because the complainant could bring an action in the Civil Court for violation of the order of temporary injunction. The Civil Court's order of injunction having not been disputed, it was no defence to the accused that they were co-sharers in the disputed land and the complainant's wife was not in exclusive possession thereof. Alauddin & Ors Vs. Md. Shah Alam Khan & Anr 7 BLT (AD)-356 Section 448 Convict-petitioner has sentenced to one year's rigorous imprisonment, which is the maximum sentence -Held; 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. It is not the rule of procedure that in the event of finding an accused guilty of an offence, he must be punished with the maximum possible sentence under that provision of law. The law provides the trial court with a discretion which must be exercised judicially. In view of the age of the accused petitioner and the evidence of the witnesses not disclosing any specific overt act, the court should have exercised the discretion and awarded a lesser sentence, which would be sufficient to give the accused a lesson that crime will not go unpunished. In my view, in the facts of the instant case, the ends of justice will be sufficiently met if the petitioner is sentenced to imprisonment for the period already undergone by him in custody in connection with this offence. Md. Rafiqul Islam Vs. The State 15 BLT (HCD) 94 Section-458 and 354 Doubtful—it is true that when according to evidence of P.Ws. 1, 3 and 5 two brothers of victim were sleeping in the same ghar beside the door and when according to evidence of P.W. 5 Dulal Hemron their parents were sleeping in the veranda of the ghar it was quite impossible and improbable on the part of any outsider to enter into to the ghar to commit rape on the victim alleged. Moreover when from above we find no proof and evidence for offence under Section 458 Penal Code there was therefore no probable chance for the next alleged offence under section 354 Penal Code to committee by the accused appellant. Mozammel Haque Vs. The State 10 BLT (HCD)-376 Section -461 and 381 read with Evidence Act, 1872 Section -24 In the instant case there is no independent evidence and the alleged extra judicial confession which is neither written not corroborate any other evidence cannot be relied upon since it has been made before the authority as we find in the evidence. Md. Mobarak Ali Gazi. Vs. The State & ors. 11 BLT (HCD)-312 Section- 464 Essential ingredients- To constitute forgery intent of defraud is essential- where the act is done under the honest belief that the party doing it had a right to do so when in reality he had no authority to do so, there is no criminal intention. Abul Kashem Bhuiyan Vs. The State 6 BLT (HCD)-109 Sections-465 & 109 and 471/109 Criminal Law Amendment Act [XV of 1958] Section 6(b)(1) Interpretation of the Statute-Commission of offence while discharging his official duties public servant but as an ordinary citizen. To bring the offences within the above schedule it must be shown that the public servant has committed the above offence or offences while discharging his official duties or purported to have been discharging his official duties. The commission of the alleged offences as stated above must have a nexus with the discharge or purported discharge of his official duties. Then and then alone the offences as described above may be treated as the offences within the schedule under the Criminal Law Amendment 1958 permitting trial of the ne by a Special Judge or Sr. Special Judge, if a public servant commits an offence, not in connection with the discharge or purported discharge of his offence cannot be deemed to be an offence under the Schedule as described above and the public servant committing the offence or offences not as such cannot be tried under the special law but any be tried in any ordinary court under the general law in his private capacity and in such cases, the provisions of the Criminal Law Amendment ct, 1958 are not attracted and there is no question of trial by a Special Judge under the Criminal Law Amendment Act, 1958 or under Prevention of Corrupt Act, 11/47. Khitish Chandra Das and Others Vs The State 1 BLT (HCD)-32 (b) Prevention of Corruption Act- (Act 11 1947)- Criminal Law Amendment Act of 1958)- Section 6(B)-1) Para(B) of Schedule- use of forged marked sheets, e offence is not a schedule offence- No illegality conviction legal. Khitish Chandra Das and Others Vs The State 1 BLT (HCD)-32 Section- 467 A document of transfer may be avoidable ton very many grounds including that it was (executed when the executant was lying ill or under the influence of the person claiming under the document. But to secure a conviction for forgery in a case like the present it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused. Clearly there is no such evidence and the circumstances referred to by the High Court Division may be enough for a Civil Court not to rely on such document but for a conviction for forgery there must be clear evidence as to the above which are the ingredients of the offence. Shawkat Hossain Akanda Chowdhury Vs. The State 6 BLT (AD)-49 Section-467/109 It is on record that the original forged deed was not produced before the trial court. The certified copy of the disputed deed was marked as Exhibit 12 wherein the name of Md. Sirajul Haque appeared and from this alone it cannot be conclusively concluded that it is this appellant Md. Sirajul Haque who identified a wrong person knowing that Bishnupada Roy was not the executant of the deed. Admittedly the certified copy of the forged deed having been filed there was no scope to examine the signature of appellant No.2 Md. Sirajul Haque. Thus, we hold that there was no legal evidence on record to connect appellant No. 2 Md. Sirajul Haque with the abatement of the forged deed. Mohir Molla & Ors. Vs. The State 7 BLT (AD)-149 Sections-467, 468, 471 The accused persons not being able to produce anything in support to this alleged auction purchase- Conviction Justified. In support of auction purchase no rent receipt was produced by this accused person during trial nor was any suggestion made to this effect to the prosecution witnesses. It cannot be said that onus of proof was shifted upon the accused persons. Conviction is as such held justified. Md. Kahar Ali Mondal and Other vs The State 1 BLT (AD)-44 Section 468 and 468/109 It being the definite case of the prosecution that appellant No.3 along with others have executed two Muktipatras in favour of the appellant Nos. 1 and 2 and another containing false statement relating to property leased out to the executants of the Muktipatras and others upon treating the property as vested property to the effect that the said property is the ancestral property of the recipients of the Muktipatras. The undisputed fact is that appellant No. 3 and others have executed the document and that therein they have made some untrue statements regarding the property relating to which they executed the Muktipatras. The documents i.e. Muktipatras having admittedly been executed by the appellant No. 3 and others the same is in no way can be said to have been brought into existence under the circumstances or situations mentioned in Section 464 in the presence whereof a person is said to make a false document." From the ratio of the cases referred to herein over it is seen that it has uniformly been held that making of false statement in a document by the executants thereof does not saddle him with the liability of committing forgery or that of making a false document. Hazi Ibrahim Ali & Ors. Vs. The State 11 BLT (AD)-39 Section-471 The accused petitioner was Bench Assistant in the Court of Thana Magistrate Kurigram. In that Court, a Certificate Case was started against Khijir Uddin and on the basis of the process issued by the court in the case Khijir Uddin was arrested. After his arrest his wife Nurun Nahar Begum came to the Court of the Magistrate and talked to the accused petitioner and handed over Tk 3,093/- to him for depositing the money in the Certificate case. The accused petitioner after accepting the amount prepared a recall order and gave a photocopy of that order to Nurun Nahar. Khijir Uddin got released from the Thana on the basis of that falsi order-Held: In the present case it has been proved that the recall order was used bm Nurun Nahar Begum in getting Khijir Uddul released from the Thana. The accused petitioner was certainly an abettor in so far as Section 471 of the Penal Code is concerned. Md. Azizul Haque Vs. The State 7 BLT (AD)-121 Section-471 When there is no evidence at all that the accused Muzaffar Hossain Sarker knew about the alleged certificate nor did he use it for his promotion. Mere proof that certain document is a forged one is not sufficient to establish the offence under this section because no conclusion can be drawn from the document itself. .The onus to proof of the existence of every ingredients of the charge always rest on the prosecution which never shifts. But in the instant case the prosecution has totally failed to prove the onus reposed on it and no prima facie easel has been made out relating to the; commission of offence. Md. Muzaffar Hossain Sarker Vs. The State 13 BLT (HCD)-372 Secion-489(b) Where there was no evidence that the currency note in possession of the accused was of nature or description or look that a mere look at it would convince any person of average intelligence that it was counterfeit or forged; nor any such question was put to the accused during trial, the conviction and sentence of the accused under the section cannot be sustained in law. Almas Miah Vs. The State 11 BLT (HCD)-4 Section-489(b) Essential ingredients of the offence under the section are: i. the note found must be forged or counterfeit; ii. one sells to, or buys or receives, or otherwise traffics in or uses such forged or counterfeit note as genuine; and iii. he does so with the knowledge or having reason to believe the same to be forged or counterfeit. When all the ingredients are proved, only then it could be said the offence is established. Almas Miah Vs. The State 11BLT (HCD)-4 Section-493 Cohabitation caused by a man deceitfully inducting a belief of lawful marriage The essential ingredient of the offence under Section 493 of the Penal Code is cohabitation caused by the accused deceitfully inducing a belief of lawful marriage in the victim. A mere promise to marry in the future does not warrant a conclusion that a false belief of marriage was caused in her mind. The prosecution has to prove that some form of marriage, which is not valid and legal, was gone through with a fraudulent intention. In the instant case there is absolutely no evidence to prove that the accused petitioner deceitfully induced any belief in complainant Asia Begum that she was the legally married wife of the accused and fed by such belief she surrendered herself to the carnal desire of the accused, leading to her conception and as such the conviction under Section 493 of the Penal Code is not maintainable. Md. Hanif Sheikh Vs. Mst. Asia Begum 7 BLT (HCD)-28 Section-499 Defamation- News was published in the weekly “???????” heading ‘?????????? ?? ?? ?????? ??’ -It was alleged that by publishing the said news Hon'ble President Hussain Muhammad Ershad and affairs of Bangladesh Telegraph and Telephone Board including the complainant were defamed and lowered in the estimation of the public by publishing false and manufactured story- Petitioners are protected under the second and third exceptions to section 499 of the Penal Code. Kazi Serajuddin & Anr. Vs. Md. Fakruzzaman & Ors 4 BLT (HCD)-171 Section-499 In the Rejoinder creation of the two power of Attorneys through acts of forgery and endeavour on the part of sponsor of Salt Refinery Industry to take loan from Bank had 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 was, 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 Penal Code. S. A. Chowdhury Vs. The State 10 BLT (HCD)-381 Section- 500 The complainant respondent filed a petition of complaint alleging that being the owner of 10 buses in transport business and was vice president of Chittagong City Auto Owner Association for 18 years from 1969 to 1986. The accused petitioner, the present General Secretary of Chittagong City Auto Owners Association, with malicious intention of defaming him in the eye of the society, published an advertisement in the Daily Azadi falsely alleging that while the respondent was vice president of the said Association, collected subscription from each bus every day and misappropriated about Tk.-l crore within 18 years- Held: The High Court Division came to a finding on the basis of the evidence on record that the respondent as Vice President had no connection with the collection of subscription or maintenance of accounts. He was simply to preside over the meeting of the Association in the absence of the President. The High Court Division also found that the impugned publication was made with the malicious intention of defaming the respondent in the eyes of society- We do not find any ground for interference. A. K. M. Jahangir Vs. Haji Munshi Meah 5 BLT (AD)-184. Section 21 - Member of Parliament is not a public servant Section 409 - Transfer of duty-free imported vehicle does not constitute punishable offence. The petitioner a member of the Parliament and not being a public servant who imported the duty-free vehicle is the owner thereof. When he transferred the vehicle as alleged in violation of the conditions of the SRO No. 266 dated 22.8.2005 he incurred the liability of the payment of customs duties and penalties which he already paid as adjudicated by the customs authority. The allegations do not constitute offence under section 409 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. The learned judges quashed the impugned proceedings as being one abuse of the process of the court. Shahidul Islam (Mohd.) @ Mufti Shahidul Islam Vs. National Board of Revenue, represented by its Chairman and others 13 MLR (2008) (HC) 441. Penal Code, 1860 Section 34 - Joint liability Unless there is participation of the accused in the commission of the offence in furtherance of their common intention, section 34 is not attracted. Mere presence in or near the scene does not make the person liable under section 34 of the Penal Code. Aminul Islam and others Vs. The State 12 MLR (2007) (HC) 21. Penal Code, 1860 Section 109 - offence of abetment Prevention of Corruption Act, 1947 Section 5(2) - Punishment for criminal misconduct Criminal Law (Amendment) Act, 1958 Section 9 - Provides for confiscation of property to the extent connected with the offence When the charges under section 5(2) of the Prevention of Corruption Act, 1947 read with section 109 of the Penal Code Penal Code, 1860 are established section 9 of the Criminal Law (Amendment) Act, 1958 imposes a duty upon the trial judge whether he imposes a sentence of imprisonment or not, he shall impose a sentence of fine and pass an order confiscating the property of the accused connected with the offence. The apex court held that the confiscated property cannot be restored to the offender. M.A. Sattar and others Vs. The State 14 MLR (2009) (AD) 168. Penal Code, 1860 Section 120B and 302/34 - Criminal conspiracy leading to commission of murder when established can be punished with the same sentence as in the case of principal accused. When charge of criminal conspiracy and murder of two judges are proved by convincing evidence beyond shadow of all reasonable doubt the conviction of the convict-petitioners and sentence of death are held by the apex court perfectly justified. The convict-petitioners who are the top leaders of the JMB a perverted Islamic militant group admitted their participation in the criminal conspiracy leading to the commission of murder of two judges at Jhalakathi having been found guilty of the offence charged with and having found them a serious threat to the life and security of innocent people have been sentenced to death. The High Court Division accepted the death reference and Appellate Division found no fault with the conviction and sentence and dismissed their petitions for leave to appeal. Shaiakh Abdur Rahman & five others Vs. The State. 12 MLR (2007) (AD) 80. Penal Code, 1860 Sections 148/304/34 - Charges against several accused need to be proved by specific evidence - When there is sharp contradiction in between the medical evidence and the ocular evidence as regards the number of injuries alleged to have been inflicted on the person of the deceased and the conviction and sentence are based on omnibus statements of the witnesses, the learned judges held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. the State 12 MLR (2007) (HC) 202. Penal Code, 1860 Section 302/120B - Murder committed in consequence of conspiracy Charge of murder has to be proved by the evidence, facts and circumstances of the case. Guilt of the accused cannot be proved by his character. Circumstance must be of such nature that it leads to the irresistible conclusion as to the guilt of the accused and must be incompatible with the innocence of the accused. The conspiracy alleged must not be remote so to have no nexus with the commission of the murder. Further the witness to such conspiracy must be natural and must be worthy of credence and inspire confidence of the court. State and another Vs. Shahidur Rahman @ Shahid and another 14 MLR (2009) (AD) 358. Penal Code, 1860 Section 161 - Laying trap to catch hold of the accused red handed while taking bribe . Anti-Corruption Commission Rules, 2007 Rule 16 - To lay and conduct trap to catch hold of an accused red handed and the requirement of the officer so conducting trap to be empowered by the Anti-Corruption Commission. To empower an officer by the Commissioner in charge of investigation to lay trap and conduct the proceedings as required under rule 16 of the Anti- Corruption Commission Rules, 2007 is the mandatory requirement of law. In the absence of such empowerment or authorization the learned judges held the proceedings illegal and abuse of the process of the court and as such quashed the same. Rezaul Kabir (Md.) State and another 14 MLR (2009) (HC) 482. Penal Code, 1860 Section 302/34 - Charge of murder proved by circumstantial and other corroborative evidence including confessional statement Sentence of death is held to be appropriate. The charge of cold blooded murder of her daughter with the participation of the co-convict in a gruesome manner appears to have been proved beyond doubt by strong circumstantial evidence and confessional statement of the condemned prisoner corroborated by other independent evidence and there being no mitigating factor the High Court Division having been in complete agreement with the trial court confirmed the death sentence under section 374 of the Code of Criminal Procedure. The State Vs. Rokeya Begum and another 11 MLR (2006) (HC) 63. Penal Code, 1860 Section 302/34 - Participation of all the accuseds in furtherance of their common intention to commit murder is essential to attract section 34. Conviction and sentence can well be based on the evidence of a solitary eyewitness and extra-judicial dying declaration. Section 34 of the Penal Code, 1860 is attracted when the accused in furtherance of their common intention participated in the commission of the murder. Conviction and sentence based on the evidence of a solitary eye witness and the extra-judicial dying declaration are held by the apex court perfectly justified. Enamul Huq and another Vs. The State 11 MLR (2006) (AD) 422. Penal Code, 1860 Section 302 - Liability of husband in wife killing case Commutation of sentence of death into life imprisonment in the absence of any extenuating circumstances is held by the apex court not appropriate. Law has by now been well settled that the husband while they were living in the same house at the time of occurrence has liability to explain as to how his wife was killed. When the husband fails to offer any satisfactory explanation presumption raises as to the guilt of the husband and the plea of his innocence falls to the ground. Abu Sayed (Saked) Vs. The State 12 MLR (2007) (AD) 101. Penal Code, 1860 Section 302/34 - Sentence of death is commuted to life imprisonment in view of absence of special brutality in committing the murder Though the charge under section 302/34 of the Penal Code was found established beyond all reasonable doubt by the prosecution, the High Court Division in the Death Reference commuted the sentence of death into imprisonment for life in view of the death of the deceased being committed without special brutality. The apex court held the decision of the High Court Division perfectly justified. State Vs. Joinal Fakir and another 13 MLR (2008) (AD) 62. Penal Code, 1860 Section 302 and 304 - Several injuries inflicted even though not on the vital part of the body of the deceased which are likely to cause death and when in consequence thereof the death actually occurred, certainly constitute affiance punishable under section 302 of the Penal Code and not under section 304. Syed Nurul Azim Babar Vs. The State 14 MLR (2009) (AD) 364. Penal Code, 1860 Section 302/34 - Acquittal of accused in a murder case on ground of benefit of doubt based on hypothesis not supported by materials on record has been strongly disapproved by the apex court - The inmates of the house in whose presence the deceased was murdered at dead of night are the natural witnesses whose evidence cannot be discarded by reason of their relationship with the deceased. Though corroboration by independent witness in a case where enmity exists between the witness and the accused is a rule of prudence but it is not inflexible rule. When time of occurrence is specifically mentioned by the prosecution in the F.I.R non-mention of the age of the injury of the deceased in the post mortem examination report is immaterial. State Vs. Abdul Kader alias Kada and others 13 MLR (2008) (AD) 86. Penal Code, 1860 Section 302 - When charge is established beyond all reasonable doubt with reliable evidence conviction and sentence awarded thereon can well be sustained. Allegation of enmity does not always diminish the evidentiary value of ocular evidence. Again absence of blood in the place of occurence by itself does not render ground to disbelieve the prosecution case. Motive when attributed but not proved is not also always fatal to the prosecution case. Yogashwar Gape Vs. The State 11 MLR (2006) (AD) 226. Penal Code, 1860 Section 302 - Liability of husband in a case of murder of his wife when he was not in the house of occurrence at the relevant time. Evidence Act, 1872 Section 106 - Liability of the husband to explain how his wife met her death In this jail appeal the condemned prisoner, from the evidence on record, is found by the Appellate Division, was not in the P.O. house at or about the time of occurrence and as such he cannot be held liable under section 106 of the Evidence Act to explain as to how his wife and three years old daughter met their tragic death. In that view of the matter the apex court held that the prosecution could not prove the charge beyond all reasonable doubt and allowed the appeal. Mokter Hossain Khan (Md.) Vs. The State 13 MLR (2008) (AD) 186. Penal Code, 1860 Section 302/ 333 I 224/34 - Charge has to be proved by consistent and reliable evidences. Evidence Act, 1872 Section 114 (g) - Withholding material witness/ evidence raises adverse presumption against prosecution case The trial court convicted accused and awarded death penalty. The High Court arterial evidence which created doubt as to the time, place and manner of occurrence and came to the finding that the deceased might have received injuries elsewhere and accordingly rejected the Death reference and acquitted the accused which the Appellate Division found appropriate and dismissed the appeal preferred by the state. State Vs. Md. Mukul alias Swapan 13 MLR (2008) (AD) 246. Penal Code, 1860 Section 302 - Husband liability to explain the circumstances under which his wife was done to death. Law is well settled that the husband is under the obligation to explain as to how his wife met her death when both of them were residing in the same house at the relevant time. In the instant case the husband convict-appellant having failed to offer any satisfactory explanation was sentenced to death by the trial court which the High Court Division in the facts and circumstances commuted into imprisonment for life. The Appellate Division upheld the sentence since commuted as perfectly justified. Abul Hossain Vs. The State 14 MLR (2009) (AD) 30. Penal Code, 1860 Sections 302 and 304 - Absence of intention to cause the death brings the offence of culpable homicide not amounting to murder within the ambit of section 304 of the Penal Code. State Vs. Jahedul Islam @ Moulvi Babu 14 MLR (2009) (AD) 258. Penal Code, 1860 Section 302 - Charge of murder when established beyond all reasonable doubt and when there is no mitigating factor, the death is held to be the proper sentence. When the wife who was living with his husband in the same house and the defence was found false and the charge of murder stood proved beyond all reasonable doubt and there exists no mitigating factor the apex court held the sentence of death perfectly justified. Alamuddin alias Sha pan Vs. The State 14 MLR (2009) (AD) 301. Penal Code, 1860 Section 302/34 - Charge of murder Section 300 Exception 4 - Ingredients of exception when not established, the accused cannot get the benefit of this exception. In the instant case the accused could not fulfil the ingredients of section 300, exception 4 and on the contrary the prosecution having established the charge under section 302/34 of the Penal Code beyond all reasonable doubt the High Court Division dismissed the appeal which the Appellate Division found nothing to interfere. Mohammad Mostafa alias Dayemuddin and another Vs. The State 24 MLR (2009) (AD) 334. Penal Code, 1860 Section 302 - Charge of murder when found based on confessional statement of accused supported by other relevant evidence-Convict appellant was last seen with the victim. The chapati used in committing the murder of the victim was recovered at the showing of the accused who surrendered before the police and made confessional statement recorded under section 164 Cr.P.C. The confession was found voluntary and true. The unbroken chain of events of the occurrence unerringly pointing at the guilt of the accused were proved beyond all reasonable doubts. The Appellate Division held the convict-appellant has been rightly convicted and sentenced. Shajahan Ali (Md.) alias Md. Shajahan Vs. The State, represented by the Deputy Commissioner, Kishoreganj 14 MLR (2009) (AD) 325. Penal Code, 1860 Section 302/34- Charge of murder- Evidence of partisan witness when does not appear to be tainted with bias can well form the basis of conviction. Non-examination of some of the chargesheeted witnesses when does not cause any prejudice to the accused, it does not raise any presumption adverse to the prosecution. Zakir Hossain and another Vs. The State 14 MLR (2009) (AD) 211. Penal Code, 1860 Section 302/34 - Charge of murder- Recognition of the accused in the light of full moon. Evidence of witness cannot be discarded on the ground of relationship with the deceased. The trial court upon scrutiny of evidence on record and the facts and circumstances convicted the accused and awarded the sentence of death. The High Court Division accepted the reference. The Appellate Division affirmed the conviction and sentence as being perfectly justified. Talebuddin (Taleb) ( Vs. The State 15 MLR (2010) (AD) 454. Penal Code, 1860 Section 302- Charge of murder must be proved beyond all reasonable doubt by evidence of independent and reliable witness. The judge must be more scrutinizing to exclude the possibility of false implication of the accused when there is enmity between the parties. Sharafat Mondal and others Vs. The State 11 MLR (2006) (HC) 168. Penal Code, 1860 Section 302 - Penalty of life imprisonment is held to be appropriate in a case based on circumstantial evidence. Where in a case prosecution is entirely based on circumstantial evidence and there is no ocular evidence of the occurrence and the accused is defended by inexperienced lawyer appointed by the state, the learned judges of the High Court Division held the sentence of imprisonment for life to be appropriate instead of the death sentence and accordingly commuted the sentence of death into one of imprisonment for life. Md. Hashem Vs. The State 11 MLR (2006) (HC) 45. Penal Code, 1860 Section 302 - Charge of murder must be proved beyond all reasonable doubt by consistent and reliable evidence. Conflict between medical evidence and ocular evidence as to the injuries and non-examination of material witness give rise to adverse presumption against the prosecution case, resulting in the acquittal of the accused on benefit of doubt. ljmaruddin alias Dana Miah Vs. The State 11 MLR (2006) (MC) 231. Penal Code, 1860 Sections 302/34,382- Charge of murder and theft - When the evidences are sharply contradictory- No conviction sustainable in law. When the evidences given during trial sharply contradict with the recitals of the FIR as to recognition and of the names of the accused, the prosecution story becomes doubtful and as such the conviction and sentence awarded thereupon cannot be sustained. Neza @ Nizamuddin and others Vs. The State 11 MLR (2006) (HC) 299. Penal Code, 1860 Section 302 - Charge of murder Section 84- Exception as to criminal liability- Plea of insanity has to be proved by the defence Code of Criminal Procedure, 1898 Section 465- Procedure of trial of person of unsound mind When the defence established by preponderance of convincing evidences that the accused-appellant was not mentally sound and was incapable of understanding the nature of his act, he is entitled to the exemption as provided under section 84 of the Penal Code. The learned judges of the High Court Division found the trial judge failed to follow the procedure of trial as contemplated under section 465 Cr.P.C which vitiated the trial and as such set- aside the conviction and sentence giving the convict-appellant benefit of section 84 of the Penal Code. Wally Ahmed alias Babi Vs. The State 13 MLR (2008) (HC) 375. Penal Code, 1860 Section 302/34- Charge of murder and the nature of proof-The cardinal principle of criminal jurisprudence is that an accused shall be presumed to be innocent until his guilt is proved by consistent evidence beyond all reasonable doubt. In case of two versions coming from the prosecution side the one more favourable to the accused shall be accepted. When the charge depends entirely upon circumstantial evidence, such circumstance having unbroken chain of events must be so strong unerringly pointing at the guilt of the accused and nothing else. Contradictions in evidence on material joints made the prosecution case doubtful. Dabir Uddin and others Vs. The State 14 MLR (2009) (HC) 181. Penal Code, 1860 Sections 302/34, 417 - Appeal against acquittal - Government did not prefer appeal against acquittal. The informant preferred this appeal. The victim was murdered in a broad day light. The learned judges of the High Court Division upon scrutiny found sufficient evidence on record which can well warrant conviction of the accused. Accordingly the appeal is allowed and the order of acquittal is, set aside and the case is sent back for retrial and disposal. Mokdus Ail Vs. Afiz Ali and others 15 MLR (2010) (HC) 318. Penal Code, 1860 Section 304- Offence of culpable homicide not amounting to murder- Postmortem Examination Report when does not support, the prosecution case becomes doubtful. Since the postmortem report categorically states that the deceased died of some disease and the evidences of the P.W.s are discrepant on material points, the learned judges of the High Court Division found the charge not established beyond doubt and as such acquitted the convict-appellants. Sheringir Mollah and others Vs. The State 13 MLR (2008) (HC) 341. Penal Code, 1860 Section 304/34 - Conviction cannot be based on omnibus statement of the prosecution witness Charge must be established by specific and reliable evidence. Several accuseds cannot be convicted on the basis of omnibus statements of the prosecution witness. When the evidence of the eye witnesses do not support the injuries of the victim mentioned in the post mortem report and the evidence of the other material witness stand in sharp contradiction, the learned judges of the High Court Division held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. The State 11 MLR (2006) (HC) 437. Penal Code, 1860 Section 304 - Part I - Offence of culpable homicide not amounting to murder- Section 34- Is attracted when the accuseds in furtherance of their common intention participate in commission of the offence Section 34 does not create substantive offence. It lays down the principle of joint liability. Participation in the commission of an offence in furtherance of common intention attracts the section. Fundamental principle of administration of criminal justice is that until an accused is conclusively proved to be guilty of an offence beyond all reasonable doubt he shall be presumed to be innocent. An accused may be acquitted on the benefit of doubt. But such benefit of doubt must be based on evidence on record and the facts and circumstances of the case and not be imaginary or fanciful doubt based on surmise or conjecture. 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. Penal Code, 1860 Section 302- In case of murder with extreme brutality death is the proper sentence Where there is mitigating circumstance the alternative sentence of imprisonment for life is the appropriate sentence. Sentence must be proportionate to the nature and gravity of the offence. State Vs. Anjuara Khatun 12 MLR (2007) (HC) 214. Penal Code, 1860 Section 302/34 - Sentence for the offence of murder is either death or imprisonment for life When the charge of murder under section 302 read with section 34 of the Penal Code is proved beyond doubt, the trial court shall have to award upon conviction of the accused the sentence of either death or the sentence of imprisonment for life in cases where there is certain extenuating circumstances. The learned judges of the High Court Division took serious view about the poor knowledge of the Additional Sessions Judge who awarded sentence of 7 years rigorous imprisonment to eight accused under section 302/34 of the Penal Code. Rasheduzzaman @ Nayon and eight others Vs. The State 12 MLR (2007) (HC) 128. Penal Code, 1860 Section 302 - Conviction and sentence not based on any legal evidence are not sustainable Convicting the appellant on the basis of evidence of court witnesses and acquitting the other 41 accused including those against whom there are sufficient convincing evidence of ocular witness by the cryptic and unintelligible judgment are viewed by the learned judges of the High Court Division with strong disapproval who also expressed their surprise at the failure of the state functionaries in not preferring appeal against the acquittal in such a case of double murder committed in broad day light. Kala Mia Vs. The State 12 MLR (2007) (HC) 232. Penal Code, 1860 Section 302/34- Charge of murder committed in furtherance of common intention. Evidence of witnesses related to each other who appear to be natural and reliable cannot be discarded only on the ground of their relationship. In the instant case the vital witnesses though related to each other consistently proved the charge and as such the learned judges of the High Court Division having found nothing to interfere with the conviction and sentence dismissed the appeal with certain modification as to appropriate section of law and entitlement of the benefit under section 35A Cr.P.C. Abu Sayed Gain alias Sáyed Ahméd Gain and another Vs. The State 14 MLR (2009) (HC) 237. Penal Code, 1860 Sections 302 and 304 - Culpable homicide when committed without the intention to cause death or in a state of provocation and loss of self-control falls under section 304 of the Penal Code In the instant case it is clearly established that the accused appellant caused the injury on the head of the deceased in the midst of quarrel and in a state of loss of self-control. The victim died in the next day of the occurrence. The offence in the facts and circumstances falls within the ambit of section 304 and not under section 302. The learned judges of the High Court Division having regard to the position of law upheld the conviction but altered the sentence of imprisonment for life into 10 years RI under section 304 of the Penal Code. Aynul Huq Vs. The State 14 MLR (2009) (HC) 278. Penal Code, 1860 Section 302/201- Husband liability in a wife killing case when both of them were living in the same house at the time of occurrence In the instant case the plea taken by the husband as to the wife committing suicide having failed and the charge of murder established beyond all reasonable doubt pointing unerringly at the guilt of the husband the conviction and sentence as modified by the High Court Division are affirmed by the apex court. Azam Reza Vs. The State 15 MLR (2010) (AD) 219. Penal Code, 1860 Section 314- Charge of causing miscarriage with the consent of the victim falls under part-I of Section 314 Miscarriage was caused to the victim Anwara Begum by administering herbal plant in her uterus as a result of which she died in the Hospital. From the evidence it appeared that she was a consenting party to the miscarriage. In that view of the matter the charge falls under part I of section 314 of the Penal Code punishable with imprisonment for a term which may extend to 10 years. But the convict appellant has been awarded a sentence of imprisonment for life. The learned judge of the High Court Division upon consideration of the evidence on record allowed the appeal in part with modification, of sentence for five years imprisonment. Raquib Sheikh (Md.) Vs. The State 11 MLR (2006) (HC) 80. Penal Code, 1860 Section 380 - Allegations of theft by husband against wife do not constitute punishable offence Allegations of theft made by the husband against the wife during the subsistence of marriage do not constitute punishable offence. The learned judges of the High Court Division having found the proceedings abuse of the process of the court quashed the same in exercise of the power under section 561A Cr.P.C. Sabina Rahman Mukti and others Vs .The State 13 MLR (2008) (HC) 347 Penal Code, 1860 Section 394- Charge held established - Recognition by voice Code of Criminal Procedure, 1898 Section 154 - Delay in lodging FIR when explained is not fatal for the prosecution In the instant case the convict-petitioner remained absconding after his release on bail and the trial was held in his absence in which he was convicted and sentenced. The delay of two days in lodging F.I.R was satisfactorily explained. The plea that the petitioner is not the actual accused which the apex court rejected as it is raised at such a belated stage. It is further held the charges were amply proved and the recognition of the accused by voice was established. The Appellate Division in the facts and circumstances dismissed the leave petition. Rana (Md.) Vs. The State, represented by the Deputy Commissioner, Joypurhat 15 MLR (2010) (AD) 173. Penal Code, 1860 Section 394- Charge must be established by consistent and reliable evidence In a criminal trial the charge framed should contain specifically the particulars of time, place and manner of occurrence. Again the court must bring to the notice of the accused while being examined under section 342 Cr.P.C. The incriminating materials on record. The charge shall have to be proved by consistent and credible evidence. When the mandatory requirements are not complied with, such non-compliance causes prejudice to the accused occasioning failure of justice and as such the conviction and sentence passed therein cannot be sustained in law. Shahid Mia and another Vs. The State and another 13 MLR (2008) (HC) 303. Penal Code, 1860 Section 395 and 397 - Offence of dacoity Code of Criminal Procedure, 1898 Section 439- Allowing the benefit of acquittal to non-appealing convicts Confessional statement of an accused cannot be used against other co-accused without corroboration. When the conviction and sentence is not based on any legal evidence the same cannot be sustained in the eye of law. Benefit of acquittal can well be allowed to non-appealing convicts. Abdus Sattar @ Sottar Vs. The State 11 MLR (2006) (HC) 367. Penal Code, 1860 Section 396- Charge need to be proved by legal evidence- Code of Criminal Procedure, 1898 Section 164- Confessional statement recorded by Magistrate after keeping the accused in police custody beyond the statutory period is held to be not voluntary. In case of capital punishment the charge must be proved by legal evidence beyond reasonable doubt. Confessional statement of an accused recorded under section 164 Cr.P.C. keeping him in police custody beyond the specified period without explanation is held not voluntary and as such cannot be the basis of conviction without independent corroborative evidence. State Vs. Mofizuddin and others 11 MLR (2006) (AD) 76. Penal Code, 1860 Section 396- Offence of dacoity- Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266. Penal Code, 1860 Section 396- For the Commission of dacoity with murder every member of the gang is equally liable. Evidence Act, 1872 Section 134- No particular number of witness is required to prove the charge. Conviction and sentence may be based on evidence of a solitary eye witness- Section 27- Statement of an accused in police custody leading to the recovery of incriminating material is admissible in evidence- Alibi taken must be established by the accused by producing convincing evidence. Code of Criminal Procedure, 1898 Section 164 - Confessional statement of an accused has to be recorded in accordance with the provisions of section 364 Cr.P.C. Absconsion of an accused from immediately after the occurrence may be a circumstance pointing at the guilt of the accused. Sentence must be proportionate to the nature and gravity of the offence committed. In order to secure conviction of an accused the prosecution must prove the charge against him by consistent and reliable evidence beyond all reasonable doubt. Evidence of a solitary eye witness can be the basis of conviction. Confessional statement though not binding upon other co-accused may be considered as corroborative evidence against the other co-accused and along with other evidence can form the basis of conviction. State Vs. Gaush Mea @ Rana (Md.) and others 11 MLR (2006) (HC) 417. Penal Code, 1860 Section 398- Charge held not proved beyond doubt when the evidences are sharply contradictory and material witnesses are withheld- In the instant case the Investigating officer and the Magistrate who recorded the confessional statement of the convict appellant have not been examined by the prosecution without any satisfactory explanation. On the contrary the evidences of the witnesses so far examined are full of contradictions. In such circumstance the learned judges of the High Court Division held the charge not proved beyond reasonable doubt and acquitted the convict-appellants. Latif alias Md. Latif Miah and Rabiuzzal Hossain Vs. The State 13 MLR (2008) (HC) 410. Penal Code, 1860 Section 406 and 420- Charge of misappropriation and cheating when does not lie- Code of Criminal Procedure, 1898 Section 561A- Quashment of proceedings disclosing no offence for preventing abuse of the process of the Court. The members of the partnership or Managing Director of Private Limited Company are the trustees of the money held in their control for running the business. No charge of misappropriation and cheating under section 406 and 420 of the Penal Code lie against them. Remedy lies in suit for accounts to be filed in appropriate forum. Therefore the, apex court quashed the proceedings. Anarul Islam (Md.) and others Vs. The State and another ii MLR (2006) (AD) 198. Penal Code, 1860 Section 406 and 420- Appropriation of loan money does not constitute offence of criminal misappropriation. Transfer of Property Act, 1882 Section 66 - Disposal of mortgaged property on imminent danger of destruction. Title of money taken on loan passes to the loanee and as such appropriation thereof does not constitute offence punishable under section 406 and 420 of the Penal Code. Moreover the loanee is entitled under section 66 of the Transfer of Property Act, 1882 to dispose of the mortgaged property under danger of being perished. Mahbub Alam Khan (Md.) Vs. The State 14 MLR (2009) (HC) 197. Penal Code, 1860 Section 406 and 420- Prevention of Corruption Act, 1947 Section 5(2) – Restriction on transfer of imported duty free vehicle by M.P. is three years. The transfer made after the expiry of the period of restriction for three years, the transfer of the vehicle imported duty free by a member of the Parliament does not constitute offence punishable under section 406, 420, 109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. The proceedings being abuse of the process of the court the learned judges of the High Court Division quashed the same. Showkat Ail (Mohd.) Vs. National Board of Revenue, represented by its Chairman and others 14 MLR (2009) (HC) 224. Penal Code, 1860 Section 406, 420, 467, 468, 476, 121A and 109- Proceeding drawn on allegations of criminal misappropriation and cheating. When a money suit has been instituted for realisation of money due on account of supply of certain goods, the subsequent criminal proceedings over the self same matter is held by the learned judges of the High Court Division not competent as being one aimed at harassing the party accused therein and as such quashed the same. Mark Parco and others Vs. State and another 13 MLR (2008) (HC) 350. Penal Code, 1860 Sections 406, 409, 467, 468 and 471- Allegations of forgery can be decided at the time of trial. As the allegations of forgery can be decided at the time of trial and as the charge in the instant case has not yet been framed, the proceedings cannot be quashed at this stage. Since the alleged document was not used as evidence in any judicial proceedings before any court, section 195(1) Cr.P.C does not stand as a bar against the present proceedings. Khizir Haider and others Vs. The State 13 MLR (2008) (AD) 157. Penal Code 1860 Sections 406 and 420- No offence is constituted when there is no entrustment and element of deception. Issuance of post dated cheque for payment of part of unpaid money arising out of contractual agreement and the dishonour of the cheque do not constitute offence punishable under section 406 and 420 of the Penal Code. The proceedings initiated thereon being abuse of the process of the court are quashed. Baby Masum and Abdul Kader Vs. State 14 MLR (2009) (HC) 458. Penal Code, 1860 Section 406 and 420- Trial of case when the offence attract both the special law and general law. Emigration Ordinance, 1982 Section 23- offence of receiving money on the pretext of providing foreign employment - The offence under section 23 of the Emigration Ordinance is triable by special court consisting of the chairman labour court. Such special court can not try offence under other law. In the instant case the ingredients of both the offence under Penal Code and special law are present. The learned judges of the High Court Division held that the proceedings either in the special court or in the ordinary court are maintainable. Phulbanu alias Phul (Mst.) Vs. The State 15 MLR (2010) (HC) 332. Penal Code, 1860 Sections 408, 409, 420- Offence of misappropriation when not committed by a public servant - not triable by Special Judge. Prevention of Corruption Act, 1947 Section 5(2)- Headmaster of a private High School being not a public servant, section 5(2) is not attracted In the instant case the accused petitioner who is a Headmaster of a private High School is not a public servant within the meaning of section 21 of the Penal Code. So the offences complained of are not triable by the Special Judge. The learned judges of the High Court Division having found the impugned proceedings abuse of the process of the court and corum non-judice quashed the same. Aminul Islam Khandaker (Md.) Vs. The State 14 MLR (2009) (HC) 421. Penal Code, 1860 Section 409, 468 and 477A- Offence of misappropriation and falsification of account. Prevention of Corruption Act, 1947 Section 5(2) - Criminal misconduct- Subsequent deposit- of the money in question does not create ground for acquittal. Admittedly the convict-petitioner misappropriated the money he collected from the Rajshahi City Corporation shops and on the proof of the charges he was convicted and sentenced to various term. But subsequently he deposited the money in question. The High Court Division did not interfere with the sentence even though the amount of money misappropriated was deposited. The apex court held the High Court Division was perfectly justified in dismissing the appeal. Sirajul Islam (Md.) Vs. The State 13 MLR (2008) (AD) 118. Penal Code, 1860 Section 409- Ingredients constituting the offence must be present. Prevention of Corruption Act, 1947 Section 5(2)- Irregularities committed by public servants in course of discharge of their duties do not constitute offence of criminal misconduct. Code of Criminal Procedure, 1898 Section 417- Unless the order of acquittal suffers from non- consideration of material evidence on record or perversity no interference is warranted. Section 234(1) and 222(1) - Charge framed in violation of the mandatory provision of law- defect is not curable under section 537 Cr.P.C. In order to constitute offence of misappropriation under section 409 of the Penal Code and criminal misconduct under section 5(2) of the Act II of 1947 there must be entrustment of the property and misappropriation thereof. When the fundamental characteristics of the offence complained of are not present, no offence is committed. Fariduddin Ahmed (Md.) Vs. Ataharuddin and another 13 MLR (2008) (HC) 786. Penal Code, 1860 Section 409 - No offence is constituted unless the ingredients are found present. Where there are evidence on record that the shortage of wheat in the godown concerned could be caused by leakage of rain water, attack of insects, rates, etc. the convict-appellant cannot be held liable for the shortage and convicted and sentenced for the said shortage of wheat which in the facts and circumstances does not constitute offence of criminal misappropriation punishable under section 409 of the Penal Code. The learned judge of the High Court Division therefore set-aside the conviction and sentence as being one not established and proved by convincing and reliable evidence beyond shadow of all reasonable doubt. Zahiduzzaman (Md.) Vs. The State 11 MLR (2006) (HC) 144. Penal Code, 1860 Section 420 and 406 - Failure to execute and register sale deed pursuant to an agreement to sell property constitutes civil liability. Failure to execute sale deed pursuant to an agreement to sell land constitutes civil liability for which remedy lies in the civil court. Such allegation does not constitute offence punishable under section 420 and 406 of the Penal Code. The learned judges of the High Court Division held the instant proceedings abuse of the process of the court and as such quashed the same. Shafiullah Chowdhury and others Vs. The State 14 MLR (2009) (HC) 490. Penal Code, 1860 Section 420 - Money obtained by inducement and practice of fraud constitutes the offence of cheating. Enhancement of sentence without issue of rule is illegal. Accused appellant took money from the complainant by inducement on the assurance of sending him to America and subsequently he did not send him to America and misappropriated the money and refused to return the money. Such an act on the part of the accused appellant constituted offence of cheating punishable under section 420 of the Penal Code. The appellate court enhanced the sentence without issuing any rule which the Appellate Division held as illegal and set-aside the enhanced portion of sentence and upheld the conviction and sentence awarded by the trial court. Mokbul Hossain Howlader Vs. The State 13 MLR (2008) (AD) 181. Penal Code, 1860 Section 420 - To constitute an offence under this section the necessary ingredients must be established Dispute being of civil nature the remedy lies in the civil court. In order to secure conviction the charge must be proved by reliable evidence beyond all reasonable doubt. Unless the constituent ingredients are fully established the allegations do not attract section 420 of the Penal Code. Alhaj Abul Kashem Vs. The State 11 MLR (2006) (HC) 73. Sections 29, 361-365— 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 vs State 49 DLR 16 Section 34— The essence of joint liability is to be found in the existence of a common intention animating the accused in the doing of a criminal act in furtherance of such intention. Before application of section 34 of the Penal Code to a case, it must be shown that (1) a criminal act was done by several persons, (2) all of them intended the commission of the criminal act and (3) the criminal act was done in furtherance of the common intention. In the instant case it is not clear that except accused appellant Abul Kalam Azad, the other accused had the intention of causing such bodily injury as was likely to cause the death of Abdul Wadud and even the participation of the other accused in causing death of the deceased is not free from doubt. Abdul Kalam Azad vs State 47 DLR 317. Section 34— This section does not create any distinct offence. It is intended to meet a case where the members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. In means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually, common intention within the meaning of this section pre-supposes a prior concert. There must be a prior meeting of the minds leading to a pre-arranged plan to commit an offence. The common intention to commit the offence invites the application of section 34 of the Penal Code. In offences involving physical violence, the presence of the accused at the scene of the occurrence renders him liable on the principle of joint liability but where the offence consists of diverse acts and it may be committed at different times, the presence of the accused at the scene of the occurrence is not necessary. State vs Tajul Islam 48 DLR 305. Section 34— Unless there is meeting of minds between the accused as to the commission of crime of common intention, the application of section 34 of the Penal Code is improper. Abdul Khaleque and others vs State 48 DLR 446. Section 34, 109 & 149— For application of section 34 some overt act by each of the accused is necessary in the commission of the crime by two or more persons but in the case of application of section 149, if one is found to be a member of the unlawful assembly for the commission of the crime, whether he takes active part in it or not, he comes within its mischief, and so far as section 109 is concerned, it is simply for abetment of the offence committed. Now, in the instant case, according to the prosecution, all the accused planned to commit the murder of the victim and towards that end they started acting and then all together in a joint action with common intention caused the murder of the victim. So, in such circumstances, it is not understood why section 34 will not be attracted in this case, when allegation is to the effect that each one of the accused persons took part in the commission of the alleged crime of murder of the victim Kalam. The question is whether the prosecution has been able to prove the allegation by evidence is a different one. We, therefore find no illegality in framing the charge against the accused under sections 302/34 of the Penal Code apart from other sections of law. Abdul Khayer and 3 others vs State 46 DLR 212. Sections 34 and 149— Section 34 of the Penal Code involves a direct overt act on the part of the accused sharing "a common intention" with others for the commission of an offence while section 149 is essentially a vicarious liability for being a member of an unlawful assembly with the "common object" of committing the offence. These two offences are of different nature. Abu Talukder vs State 51 DLR 188 Section 96— The possession for exercising right of private defence must be a settled possession a peaceful possession for a pretty long time without any resistance. Sarwar Kamal and others vs State 48 DLR 61. Sections 96-104— The onus of proving right of private defence lies on the accused claiming exercise of such right. Sarwar Kamal and others vs State 48 DLR 61. Sections 96-106— The right of private defence of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right is an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandoker Saiful Islam vs State 50 DLR (AD) 126 Section 100— Right of private defence—When the accused had scuffles with the deceased and the fear of retaliation from the deceased party overpowers the mind, it is not possible for him to weigh the position in golden scales. In such a situation when he is faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of private defence. The accused cannot be said to have exceeded the right of self-defence. Ruhul Amin Mondal vs State 49 DLR 250 Section 120B— Jobaida's jubilation might be the result of her moral support to the activities of her husband (leading to bloodshed and political change) but for that it cannot be said that she was in the conspiracy. Jobaida Rashid vs State, represented by the Deputy Commissioner, Dhaka 49 DLR 373. Section 147— All the accused persons assembled to attack the informant. Though only one accused Abdul Khaleque attacked the informant, other accused are also guilty under section 147 because every member of an unlawful assembly is guilty irrespective of whether he had any overt act or not. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457. Section 148— If both parties are found to have committed offence under section 148 of the Penal Code none of them is entitled to be acquitted on the ground that the other is the aggressor and in this respect law spares none. Bachu Miah vs Samad Miah and others 50 DLR 564 Section 149— The two accused had no premeditation to kill the victim and as such the application of section 149 for tagging them to face trial on murder charge appears to/be illegal. State vs Khalilur Rahman 48 DLR 184. Section 149— When a particular offence is committed by an individual member of the unlawful assembly, which was neither done in prosecution of common object of the assembly nor other members of the assembly lenew that the offence would be committed, other members of the assembly/cannot be held liable for the offence. The word "likely", in the later part of section 149 of the Code means some clear evidence that an unlawful assembly had such a knowledge. In view of other offenses committed, such as criminal trespass and assault, it is difficult to hold that all the appellants are consecutively liable under section 149 of the Code when Appellant No.l Abdus Sattar alone struck a Katra blow on the right side of the chest of deceased which proved fatal and, strictly speaking, section 149 of the Penal Code is not attracted in this case. There being overwhelming evidence of inflicting Katra blow on deceased Aminul Huq by Appellant No.l, the appeal in respect of Appellant No.l Abdus Sattar is dismissed and his conviction and sentence under sections 302/149 of the Penal Code is altered to section 302 of the Penal Code and his sentence of imprisonment for life is maintained. Abdus Sattar and others vs State 46 DLR (AD) 239. Section 193— If a court finds that any witness committed an offence under section 193, the court is to proceed in accordance with the provisions of section 476 of the Code of Criminal Procedure because the offence under section 193 is included in section 195(l)(b) of the Code. Idris Miah (Md) vs State 50 DLR 629 Section 201— Since both the condemned prisoners are sentenced to imprisonment for life there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. State vs Hamida Khatun and another 50 DLR 547 Sections 202— The accused committed an offence punishable under section 202 of the Penal Code for not giving the information about the offence either to the nearest Magistrate or to the police station. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Sections 299 & 300— When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention. State, represented by the Solicitor to the Governemnt of the People's Republic of Bangladesh vs Ashraf Ali and others 46 DLR (AD) 241. Section 300— When the victim went to bed with her husband and was found subsequently dead there, he bears a serious obligation to account for her death. Abdus Sukur Mia vs State 48 DLR 228. Section 300— When all that the accused intended was to strike his wife and the strike by mistake hit their newly born baby which had led to the killing, such of the accused falls within the purview of exception I of section 300. State vs Abdul Howlader 48 DLR 257. Sections 300 & 302— As there is a possibility that before the occurrence there might have been some sort of altercation between the accused and the deceased or loss of temper by the accused, it cannot be held that it was a premeditated murder. State vs Abdul Khaleque 46 DLR 353. Sections 300 & 396— The word murder appearing in section 396 of the Penal Code and the word murder appearing in section 300 of the" Penal Code is not the same thing. In section 396 the liability of commission of murder is conjoint while commission of murder as defined under section 300 is absolutely an individual liability. Arzan @ Iman Ali vs State 48 DLR 287. Section 302— Motive is not a necessary ingredient of an offence under section 302 of the Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, especially when the case is based on circumstantial evidence. State, represented by the Solicitor, Government of the People's Republic of Bangladesh vs Giasuddin and others 51 DLR (AD) 103 Sections 302 & 302/149— The High Court Division affirmed the order of conviction and sentence as passed by the trial Court forgetting altogether that the conviction of the appellant was recorded by the trial Court under section 302/149 of the Penal Code which is a completely different kind of conviction from one under section 302 directly where the liability is personal and in the former case the liability is vicarious. Altaf Hossain vs State 50 DLR (AD) 120. Section 300 Explanation 4— Accused Abdul Aziz Mina has acted in a cruel and unusual manner and also took undue advantage in inflicting 4 knife blows on the person of victim Jalal which ultimately caused his death. Therefore, the offence as committed by accused Abdul Aziz Mina does not in any way attract the provision of Exception 4 of section 300 but attracts the provision of section 300 that it is a voluntary infliction of knife blows with the intention of causing death and as such accused Abdul Aziz Mina cannot escape the liability of causing homicide amounting to murder. Abdul Aziz Mina and others vs State 48 DLR 382. Sections 302/34— 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 /mat 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. Sections 302/149— Without a proper finding that the accused had a common object conviction with the aid of section 149 of the Penal Code is illegal. State vs Raisuddin and others 48 DLR 517. Sections 302/34— 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. State vs Abdul Momin Sardar 50 DLR 588 Section 304 Part I— The accused was free to inflict as many blows as he liked—That he dealt merely one blow shows that he did not intend to kill the victim. The killing cannot be termed murder. State vs Khalilur Rahman 48 DLR 184. Section 304 Part II— There was none to stop Rashid to deal repeated blows if he had the intention to kill—he merely had struck one blow which eliminates the intention to kill. Therefore, the intention to kill is lacking—It is not a case of culpable homicide amounting to murder but a culpable homicide not amounting to murder. Abdul Khaleque and otherrs vs State 48 DLR 446. Sections 302 & 304— By inclusion of the offence of the above ordinance in the schedule to the Special Powers Act the jurisdiction of the Sessions Court has been ousted. Now, as the death is proved but not for demand of dowry, the present case is sent back to the Sessions Court for trial. Firoz Miah vs State 51 DLR 37 Sections 302 & 304 Part II— The accused persons might have given the deceased a serious beating to effect divorce of his second wife and this resulted in his death. The offence committed by them does not attract sections 302/109, it attracts provision of section 304 Part II of the Penal Code. Shahajahan Talukder @ Manik and others vs State 47 DLR 198. Sections 302/34— 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. State vs Abdul Momin Sardar 50 DLR 588. Sections 302 & 326— The injury inflicted did not cause instant death. The victim was alive for about 11/2 months at the hospital. This shows the injury inflicted was not likely to cause death, but it endangered the life and ultimately resulted in death. The appellant therefore is guilty under section 326 of the Penal Code. Humayun Matubbar vs State 51 DLR 433 Sections 320, 325 & 326— There is no evidence that any of the injuries endangered the life of any of the victim. There was no fracture, the victims were discharged from the hospital after treatment of several days. There is no evidence to show that any of the victim suffered severe bodily pain for a period of 20 days or unable to follow his ordinary pursuits. So the conviction under sections 326 and 325 of the Penal Code is not proper and legal. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457 Section 326A— The offence of gouging out eyes falls with section 326A of the Penal Code. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529. Section 342— 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 and others vs State 51 DLR (AD) 33 Sections 361, 363 & 366A— Age of majority and guardianship—Decision as to custody of a minor pending criminal proceedings—Neither personal law nor Majority Act is relevant for the purpose. The statute that holds good is the Penal Code. If the allegations are that of kidnapping of a minor girl, then for the purpose of her custody, the court has to proceed on the basis that she is a minor if she is under 16. If however the allegations are that of procuration of a minor girl, the court has to proceed on the basis that a girl is a minor who is under 18. Wahed Ali Dewan vs State and another 46 DLR (AD) 10. Sections 363 & 366A— A minor to be taken out of the lawful custody of her guardian as under section 363 must be a minor under 16. A minor under 18 would be referable to section 366A. She cannot be allowed to go whether she attains the age of 18 years. Dr Bimal Kanti Roy vs State and othrs 46 DLR 541. Section 366A— The FIR was lodged under section 366A of the Penal Code. The offence under section 366A is related to a girl under the age of 18 years and not under the age of 16 years. Nurunnahar Khatun vs State 46 DLR 112. Section 366A— In an interlocutory matter concerning custody of a girl, to give a final judgment on her age is to decide an aspect of the merit of the case which is decisive of the case itself. After the decision has been given that the girl is quite major above 18 years, can there be any purpose for a trial which is still pending? The learned Judges should have made it very clear that the finding made by them as to the age of the girl was only for the purpose of deciding the present custody of the victim girl and the trial Court was free to take its own decision upon considering the evidence to be led in the case. That having not been done, it must be said that the impugned judgment suffers from at least impropriety having usurped the powers of the trial Court in a pending criminal case. Khairunnessa vs Illy Begum & another 48 DLR (AD) 67. Section 366A—Age of girl—Physi¬cal appearance—Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In some cases physical development may take place which may be regarded as precocious while in some other cases there may not be as much development as is natural with the passage of time. Having regard to the fact that the available materials supported the claim of the mother that the girl was aged about 15/16 years except the statement of the girl herself, the High Court Division cannot be said to have acted judiciously in ingnoring the materials and relying on the statement of the girl and their own observation of the girl. The mother has a reasonable grievance to make against the judgment which does not seem to have been passed upon a proper appreciation of the materials on record and far less keeping in view the welfare of the victim girl alleged to be a minor. Khairunnessa vs Illy Begum and another 48 DLR (AD) 67. Sections 379 & 447— When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others vs State and another 51 DLR 278. Sections 386, 387 & 390— The distinguishing element between extortion and robbery or dacoity is not the presence of the offender but the presence of imminent fear and also the delivery of possession of goods to the offender, the actual delivery or possession of property by the person put in fear is the essence of the offence of extortion. Where a person through fear passively allows, his property to be taken away the offence committed will be robbery or dacoity and not extortion. The Special Tribunal had no jurisdiction to try this case as the offence alleged against does not come either under section 386 or section 387 of the Penal Code, but it is more in the nature of a robbery or a dacoity. Dulal Howlader and others vs State 48 DLR 269. Section 396— Dacoity with murder—When a murder is not committed in the course of committing dacoity there can be no conviction under section 396 of the Penal Code. Since the prosecution has failed to prove the commission of dacoity and murder of victim Tajul by the condemned-prisoner and his associates by any cogent and reliable evidence the order of conviction is not sustainable in law. State vs Mesbahuddin 49 DLR 245. Sections 406/420— 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 409— The accused having withdrawn money of the account holder PW2 upon a previous understanding between them, the trial Court misdirected itself in assessing evidence in the case in its true perspective and thereby wrongly convicted him. AKM Mohiuddin vs State 50 DLR 447. Section 415— The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180. Section 420— 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 scrutinize 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 420— The first information report having made out an allegation that the informant was persuaded by the petitioner to part with his money through a clever device and was ultimately threatened with murder for demanding repayment of the money, the initial intention to deceive appears on the face of the First Information Report. Nurul Islam vs State and another 49 DLR 464 Section 420— An offence under section 138 of the Negotiable Instruments Act is for dishonour of a cheque simpliciter for insufficiency of fund, etc. whereas an offence under section 420 of the Penal Code for cheating is a distinct offence. The rule of law about the peremptory application of the special law in place of the general law for trial of an offence hardly applies when the offences are distinct under the two laws. Nurul Islam vs State and another 49 DLR 464 Section 420— Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act. State vs Md Iqbal Hossain and others 48 DLR (AD) 100. Sections 420 & 406— From reading of section 48 of the Act we do not find that institution of this case under Penal Code is barred under section 48 of the Act by an explicit provision of this Act. Salahuddin (Md) and others vs State 51 DLR 299 Sections 447 & 379— When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others vs State and another 51 DLR 278. Section 463— To find one guilty of forgery there must be an original document first. In the absence of the original one, it cannot be said that the resolution by the Bar Association dated in question is a forged resolution. SA Alim vs Dr Md Golam Nabi and another 48 DLR 98. Sections 463 & 464— Ante-dating of a document with any of the intentions such as causing damage or injury to a person by way of depriving him of his right already acquired by a kabala constitutes forgery. Amatutnnessa transferred her entire interest to the appellant by the kabala executed and registered by herself of 18-7-75 (Ext. l) and was thereafter left with nothing for subsequent transfer to anybody, but she executed the subsequent kabala (Ext.4) in favour of her brother accused Syeduzzaman conveying the same land by ante-dating the kabala showing that it had been executed earlier than the appellant's kabala. Execution of the subsequent kabala shows her intention to deprive the appellant of his right already acquired by his kabala which was found to be genuine. "Forgery" means making of a false document with certain intentions, such as to cause damage or injury to a person, to support any claim or title, to commit fraud. Amjad Molla vs Syeduzzaman Molla and others 46 DLR (AD) 17. Section 464— Unless there is an element of fraud or intention to cause damage or injury to the public or any person the document or part thereof cannot be called as forged document. Mere signing of the petitioner in another's name who did not give authority to 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. Abul Kashem Bhuiyan vs State 50 DLR 631 Section 467— To secure a conviction for forgery in this case it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused. Showkat Hossain Akanda Chowdhury vs State 50 DLR (AD) 128 Section 471— For the offence under section 471 of the Penal Code an accused can be punished as provided in section 465 of the Penal Code up to 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah vs State 50 DLR (AD) 96 Section 471— The High Court Division is palpably wrong in holding that when an accused is convicted and sentenced under section 466 he cannot again be convicted and sentenced under section 471 of the Penal Code. In the present case it has been proved that the recall order was used by Nurun Nahar Begum in getting Khijiruddin released from the Thana. The accused-petitioner was certainly an abettor in so far as section 471 of the Penal Code is concerned. Azizul Hoque (Md) vs State 51 DLR (AD) 216 Section 493— The prosecution is required to prove that some form of marriage or an apology for conducting a marriage took place and as a result of which the woman had a belief in her mind that she was the lawfully married wife of the accused. In the facts and circumstances of the case and the evidence on record, it is difficult to comprehend how such a grown up woman with sufficient worldly knowledge would bonafide believe that she was the legally married wife of accused Hanif on his mere promise to marry her in the future and on such fond belief she surrendered herself to the carnal desire of the accused petitioner, which eventually led to her conception. Hanif Sheikh (Md) vs Asia Begum 51 DLR 129 Section 494— Marrying again during lifetime of wife—framing of charge under this section was wrong because the Muslim Family Laws Ordinance or any other law does not render second marriage, during the subsistence of the earlier marriage, void. A person can be charged under section 494 Penal Code only when such marriage is void. In is apparent that the Magistrate committed error of law in framing charge under section 494 of the Penal Code instead of under section 6(5) of the Muslim Family Laws Ordinance, 1961. No doubt the accused petitioner pleaded guilty and the conviction is based upon that plea only. But the guilty pleading of an accused person cannot cure the inherent defect in the charge or in the conviction. Masud Ahmed vs Khushnehara Begum and another 46 DLR 664. Section 499, 8th Exception— Complaint made by the petitioners in good faith to the Hon'ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by exception. Abdur Noor and others vs State and another 50 DLR 456 Section 500— Had the complainant sent a rejoinder to the petitioner and the same was not published then it could be said that the petitioner did not act in good faith and for public good. Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176. Section 500— Further prolongation of the case against the accused, for publishing the alleged report which has not even been claimed to be entirely baseless in the petition of complaint will be an abuse of the process of the court. Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176. The Penal Code (XLV of 1860) Section 302/34. All murders are culpable homicide but all culpable homicides are not murder. Excepting the General Exceptions attached to the definition of murder an act committed either with certain guilty intention or with certain guilty knowl¬edge constitutes culpable homicide amounting to murder. State vs Abdul Barek (Mohammad Gholam Rabbani J)(Criminal) 2ADC 154 Section 409, Act (11 of 1947) Section 5(2) On 6m February 1978 several amend¬ments took place in the Act incorporat¬ing, amongst others, a new sub-section as sub-section 6(IA) to section 6 ..... Section 6(IA) of the Act, therefore, was effective then. In view of Section 6(IA) of the Act we find that there was no necessity of further publication of the noti¬fication in any daily. Md. Atiquzzaman Khan vs The State (Amirul Kabir Chowdhury J)(Criminal) 2ADC157 Section 302/34 As per provisions of section 133 and illustration (b) of section 114 of the Evidence Act the evidence of an accom¬plice is unworthy of credit, unless he is corroborated in material particulars because an accomplice who betrays his associates is not a fair witness. Faruque @ Jamai Faruque & L.M. Liakat Ali Laskar vs The State (M. M. Ruhul Amin J)(Criminal)2ADC 165 Section 300,304 In the instant case there is no evidence from the prosecution side that the accused had the knowledge of the trial condition of Golok. We can now con-clude that the incident took place upon a sudden verbal quarrel and in the heat of passion the two brothers gave blows on the chest of Golok without any guilty intention to cause the death and thus they committed culpable homicide not amount-ing to murder. Nibir Chandra Chowdhury vs The State (Mohammad Gholam Rabbani J) (Criminal)2ADC 169 Section 201/34, 302/34 In view of positive evidence that the blood stained lungi was that of accused Zahirul Alam Kamal, according to us, he cannot be absolved of the responsi¬bility of murder of Chapa. Regarding two other accused respondents however we do not find any such incriminating element to connect them with the mur¬der though they, as well, are found responsible for causing disappearance of the evidence. In such view of the matter we feel inclined to give benefit of doubt to the two other respondents Nasiruddin Jamal and Zillul Bari so far as the charge against them under Section 302/34 of the Penal Code is concerned. They however cannot be absolved of the charge under Sections 201/34 of the Penal Code. The State vs Khandker Zillul Bari (Amirul Kabir Chowdhury J)(Criminal)2ADC 525 Section 109, 111, 406, 420 It is a well-settled principle that a person who abets the actual perpetration of the crime at the very time when it is commit¬ted is a 'principal of the second degree' under section 109 of the Penal Code. This is applicable to the accused-importer. There is, however, no distinction between 'principal in the first degree' and 'princi¬pal in the second degree.' Under section 111 of the Penal Code an abettor is liable for a different act if. Islami Bank Bangladesh Ltd. vs Muhammad Habib (Mohammad Gholam Rabbani J) (Crminal) 2ADC 621 Section 561A, 195(l)(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 114,148,149,302,307,325,326 At the time of trial if material (s) is placed before the Court and on consid¬eration thereof if the court feels that it will not be desirable in allowing the respondents on bail in the interest of jus¬tice, the trial Court will be competent to make appropriate order as regard them. The State vs Md. Abdus Salter (M. M. Ruhul Amin J)(Criminal)2ADC 790 Section 302/34, 304 There is however no evidence that the appellants intended to cause the death of the victim. From the facts and circum¬stances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder punishable under Section 304, Part I of the Penal Code. Aynul Sheikh & Jaber Sheikh vs The State (Amirul Kabir Chowdhury J) (Criminal) 2ADC 863. Section 304/326 In the facts and circumstances we are of the view that ends of justice would best be met if the appeal is disposed of with the direction to the convict respondent Nos. 1 and 2 to take steps for getting the appeal heard and disposed of within five months from date. Abdus Sobhan vs Faruque Ahmed @ Sunan (Amirul Kabir Chowdhury J) (Criminal) 2ADC 866 Section 304 Ordinarily, an order of acquittal is not interfered with but to meet the cause of justice we find it a fit case for interfer¬ence with the order of acquittal of the accused respondent. We have no hesita¬tion to hold that Nuru Mira had been rightly convicted for the murder of Amjad and that reversal of his convic¬tion by the appellate Court is totally unlustified as its finding as to the nature of the fatal injury of Amjad is based on surmises. The State vs Nuru Mira (Shahabuddin Ahmed CJ)(Criminal) 2ADC 867 Section 302/109 Under section 134 of the Evidence Act believing of only eye-witness is legally permissible and conviction can be based on the sole evidence of only one eye¬witness if found to be trustworthy. Md. Yousuf Bepari vs The State (M.M. Ruhul Amin J)(Criminal) 2ADC 871 Section 147,148, 149, 302, 323, 324, 379, 447 Sheikh Ahmed Vs. The State 1979 Bangladesh Supreme Court Reports Volume III at page 417. Giasuddin vs. The State 44DLR (AD) 225. Al-haj Ahmed Hossain Khan Vs. Rezaur Rahman 42 DLR (AD) 225 Shahajahan Manik and Farida Aktar Rina Vs. The State 42 DLR 465. In view of the allegations and the evi-dence on record, we are of the view that these accused appellants could not be guilty on evidence under section 302/149 of the Penal Code for being a number of unlawful assembly having the common object of committing mur-der of the victims Accordingly, the accused appellants in Criminal Appeal No.38 of 2003 are convicted under sec¬tion 148 of the Penal Code. Abdul Aziz & Monowar Hossain vs The State (Mohammad Fazlul Karim J)(Criminal) 2ADC 882 Section 302/34 In the instant case we have considered the surrounding circumstances, includ¬ing the place, time of the alleged occur¬rence and kind of witnesses produced to support evidence of P. W.2 and we are in agreement with the High Court Division that under the circumstances the testi¬mony of P.W.2 is not sufficient to main¬tain conviction and more so her evi¬dence also, in the facts and circum¬stances, could not be relied upon to be true........... (6). The State vs Muktu Mia and ors (Amirul Kabir Chowdhury J)(Criminal) 2ADC 1002 The penal Code, Sections 420/409/467/468/471/466 The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manu-facturer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged can not be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax. The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assessment and to release the goods and on completion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facili¬tate the importers to release imported goods without paying any tax. The Solicitor represented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir Husain CJ)(Criminal) 4ADC 177 Section 409/109 In collusion with each other for illegal gain misappropriated Tk. 11,80,615/- by false billing against consultancy service and thereby committed an offence pun¬ishable under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947. Section 561A of the Code of Criminal Procedure praying for quashing the pro¬ceeding and the High Court Division by the impugned judgment and order made the Rule absolute. 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 mak¬ing payment against running bills. We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we consider it 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. The State, represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram (MM. Ruhul Amin J) (Criminal) 4ADC 264 Section 147/148/341/323/307/373/365 and 34 That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive sub¬stances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are alle¬gations against some other co-accused of assault, abduction and confinement of the informant but most of them are enjoying bail. That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dis¬missed. The State, Represented by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267 Section 143/326 Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed bail. Though some explanation has been given in the First Information Report but it cannot be denied that for an occur¬rence alleged to have taken place on 03.08.2001 First Information Report has been lodged on 20.04.2002/ 05.05.2002. In the First Information Report it appears that allegations of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No. 1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268 Section 302/34 Inconsistency in the evidence the order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this con¬tention cannot be brushed aside alto¬gether. There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evi¬dence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder pun¬ishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are convicted there¬under. Aynul Sheikh and another vs. The State represented by the Deputy Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal) 4ADC 354 The Penal Code (XLV of 1860), Section 304, 324. We have already found that the doctor who held post mortem examination over the deadbody of the deceased found (1) One healed stitched wound (oblique) on front of the right parietal bone measur¬ing 1" in length. (2) Three abreasinon marks on anterior aspect of left shin each measuring W*X ", "X W amd " X W which were healed and scab were formed. In the opinion of the doctor death of the deceased was due to com¬plications of the above mentioned injuries which were ante-mortem and homicidal in nature. Mashuq Mia @ Iqbal vs The State (M. M. Ruhul Amin J) {Criminal) 3ADC 57 Section 302/201/34 The High Court Division committed error of law in upholding the conviction and sentence of the petitioners of the basis of confessional statement of accused petitioner Zinnah Sheikh but the so-called confession was exculpato¬ry in nature as the prosecution failed to adduce any corroborative witness in support of the so-called confessional statement; it is argued that without cor¬roborative evidence the confession of a co-accused Exhibit-4 cannot be used against other accuseds and as a result there has occasioned serious failure of justice. Mazid Sheikh @ Mazid vs The State (Syed J.R. Mudassir Husain J) (Criminal)3ADC 62 Section 392,411 The learned Advocate for the petitioner could not point out to any tangible mate¬rial on record to substantiate the submis¬sion that petitioner was entitled to be dis¬charged from the charge framed against him. AliAkbor Khan vs The State (Md. Ruhul Amin J) (Criminal) 3ADC 64 Section 302/34 We have already found earlier that the prosecution has been able to prove the presence of the accused appellants in the early morning near a 'Pan Boroj' where there is no locality. So, in all fairness it can be said that the prosecution case has been able to prove the assembly of the accused appellants for murdering the deceased. There is no explanation as to why the accused appellants assemble by the side of a village path way in odd hours of the day. Srwardi Shaikh vs The State (Syed J R Mudassir Husain J) (Criminal) 3ADC 66 Section 328, 420 That the prosecution witnesses having been believed by the learned trial Judge, the High Court Division erred in law in discarding the evidence of the prosecution witnesses for some artificial reasons not warranted by law. The State vs Abul Kalam (Amirul Kabir Chowdhury J) (Criminal) 3ADC 87 Section 302/34 It appears that the learned Judges having properly discussed and considered the prosecution witnesses came to the finding that the petitioner Mostafa inflicted 'Falah' blow on the chest the victim Habibur Rahman with intention to kill him and the victim Habibur Rahman fell down on the ground and died on the spot then and there. Mostafa alias Mosto vs The State (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 179 Section 448/326/307/34, 561A Whether the High Court Division have committed an error of law resulting in mis¬carriage of justice in not holding that the proceeding so far as the appellant is con¬cerned is frivolous, vexatious, malafide and groundless and therefore ought to have been quashed and the proceeding being false, concocted, continuation of such pro-ceeding is abuse of the process of the Court and the Appellant standing on the same footing of co-accused Mr. Mashiuzzaman ought to have been released from the charge leveled against her and the proceeding aganst her ought to have been quashed. Mrs. Novara Schute alias ors. vs The State (Mainur Reza Chowdhury J)(Criminal) 247 Sections 468, 471 Accused petitioner by fraudulent means showed said Marium Bibi being alive and created the 'Heba' Deed on 5-1-1977 in his favour and claimed his ownership of the case land. Abdur Rahman Nazim vs Abdul Rahman Nazim (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 249 Sections 302, 201/34 The right question the High Court Division was required to ask itself was whether the circumstances proved in the case were incapable of any other hypothesis than that of the guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were conclusive for the inference of guilt of the accused and whether the circumstances relied upon by the learned Sessions Judge were con¬clusive for the inference of guilt against the accused or not. The State vs Khandker Zillul Bari& Zahirul Alam Kamal (Amirul Kabir Chowdhury J)(Criminal) 3ADC 253 The Penal Code (XLV of 1860) Section 326A That there being inordinate delay in lodging the F. I. R and there being no evidenced whatsoever of recognition of the accused the Judgment passed by the High Court Division is not above board. The State vs Moniruzzaman Kazi alias Thanda Kazi (Syed J. R. Mudassir Husain CJ) (Criminal)3ADC 392 Section 148, 302/34, 326 Because the place of occurrence has been shifted and in this respect witness¬es have contradicted themselves ....... investigating officer did not seize any blood stained earth nor any wheat plant to identify the place of occurrence. Habibur Rahman alias Habu vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 398 Section 302/34 Failure of the prosecution to prove the motive as imputed by it will have no impact in the facts and circumstances of the case. Yogashwar Gope vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 400 Section 302 It is not safe to base conviction on retracted confession alone without cor-roboration in material particulars in sup¬port of the guilt of the accused in the instant case and the P.W. 1 Md. Abdur Rahman father of deceased Rubel at the time of lodging First Information Report did not suspect any body in the killing of Rubel and Mantu and P.W.3 Jebunnessa, who deposed in the Court that she found the appellant fleeing away by crossing boundary wall of Rubels house did not make such state¬ment before Investigation. Md. Golam Murtuza @ Isphi vs The state (Syed J. R. Mudassir Husain J)(Criminal) 3ADC 407 State (Amirul Kabir Chowdhury J)(Criminal)3ADC 496 Section 302/34 Dismissing the appeal and consequent thereupon affirmed the judgment and order dated 09-07-1990 passed by the Session Judge. If at the time of trial, the offender not below the age of 16 years at the time framing charge for trial can be held together with adult and no separate trial is necessary. Mona alias Zillur Rahman vs The State (Abu Sayeed Ahammed J) (Criminal) 3ADC 505 Section 201, 409, 467, 468 Important part of the evidence of such important witness has not been denied nor even there is any cross-examination on that point. There is nothing on record to disbelieve the evidence of wit¬nesses including aforesaid P.W. 1. On perusal of the impugned judgment we find that the trial court as well as the High Court Division considered the evi¬dence on record and pass the impugned judgment and order. Mahbubur Rahman vs The State (Amirul Kabir Chowdhury) (Criminal) 3ADC 578 Section 302/34 ............... of evidence given by a Hostile with A witness even if he is declared hostile, the whole of his evidence affect¬ing the parties, favorably of unfavor-ably should be considered and that if the evidence of the hostile witness fits in with the attending circumstances it may be accepted and considered along with other evidence. Abdur Rouf Sarder vs The State (Amirul Kabir Chowdhury J)(Criminal) 3ADC 585 Section 420, 448, 506, 56 It has already been settled that exercise of its inherent jurisdiction under section 561A of the Code by the High Court Division can be exercised if it appears that a legal bar against institution or continuance of the proceeding is appar¬ently visible or the complaint, even if accepted in their entirety, do not consti¬tute any offence and if there is no legal evidence. Selim A Khan vs Md. Harun Malik (Amirul Kabir Chowdhury J) (Criminal) 3ADC 587 Section 149, 148, 149, 323, 302, 447 That in case of any Judge of Magistrate or a public servant, nor removable from his office save by order or with the sanc¬tion of the Government, being an accused of any offence, while acting in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanc¬tion of the Government. We like to observe that 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, in our opinion, they were rightly served by the learned Additional Sessions Judge sentencing them to death and so no lenience ought to have been shown to them. A. S. I. Md. Ayub Ali Sardar vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 663 Section 302/34 There is allegation against the accused respondent who is the principal accused and against others of firing gun shots and thereby murdering the deceased husband of the informant who was a popular Ward Commissioner and thus there is allegation of involvement of the accused respondent in the commission of the said sensational murder of late Ward Commissioner Shaukat Ali and as the case is still being investigated with allegation of threat and tempering with the evidence/witnesses his bail should be cancelled and the ought to remain in custody for securing the ends of justice. Runu Akhter vs Md. Barkat (Boston) (Mohammad Fazlul Karim J) (Criminal) 3ADC 668 Section 395, 397, 412 As the accused had no knowledge that the 13 barrels of oil recovered from his custody were the subject matter of the dacoity and none of dacoits identified the accused to be in dishonest posses¬sion of the recovered 13 barrels of stolen oil and that the accused-petition¬er has been languishing in jail custody for the last 2 '2 years and having been found guilty under section 412 of the Penal Code, ends of justice would be best. Ali Akbar@ Ali Abkar Dewan vs The state (Mohammad Fazlul Karim J) (Criminal) 3ADC 746 Section 420 We are of the view that as a result of addition of complainant Md. Ismail as party in the Criminal Miscellaneous Case No. 13540 of 2003 as opposite party No. 2 there is no likelihood of accused petitioners being prejudiced as the said Miscellaneous Case pending before the High Court Division will be decided on merit in accordance with law. Zafar Ahmed Chowdhury and oth¬ers -vs- The state (Syed J.R. Mudassir Husain CJ)(Criminal) 3ADC 751 Section 406, 467, 468, 471,109 That the accused persons in collusion with each other through forgery created records in the name of a false and non¬existent firm. Shabbir Ahmed Chowdhury vs The State (Amirul Kabir Chowdhury J) (Criminal) 3ADC 832 Section 396 It is on record that the accused Mafizuddin was arrested on 22.08.1997 and he was produced before the record¬ing Magistrate on 24.08.1997 and there is no explanation for delay in producing the condemned prisoner Mafizuddin before the recording Magistrate within the specified time. The State vs Mofizuddin and others (M. M. Ruhul Amin J)(Criminal) 3ADC 840 Section 489C, 395, 397 In the FIR there was no allegation that accused had tried in any way to counter¬feit or perform any part of the process of counterfeiting or sell or buy or make or perform any part of the process of mak¬ing or intended to use the counterfeit currency-notes, and the mere possession of counterfeit currency-notes not being made punishable under Section 25A of the Special Powers Act. In law in view of the settled principle of law, that summary disposal of a case, be that in revisional jurisdiction or in other jurisdiction, without hearing the other side is not legally sustainable and appre¬ciable. The State vs. Nur Husain alias Hiron (Md. Ruhul Amin J)(Criminal) 4ADC 85 Section 102B/302/34 While the victim was being teken to the local hospital for treatment, on the way he died on. Charge-sheet against 15 accused-per¬sons including the leave-petitioners under Section 120 B/302/34 of the Penal Code. Amirul Islam and others vs. The State and another (Syed J.R. Mudassir Husain CJ) (Criminal)4ADC 175 Sectios 420/409/467/468/471/466 The respondent is a registered Private Limited Company of Bangladesh and is an export oriented industry and manufac¬turer of poly propylene cover bag used in readymade garments factory and poly propylene is a prime raw material of the said industry and the respondent imported the said goods properly and legally for industrial consumption and as such the imported goods being a banned item as alleged can not be said to be banned item rather it is an importable item and any general importer can import it on payment of proper duty and tax. The imported goods arrived at Mongla Port on 09-06-2002 from Indonesia and the respondent presented the bill of entry to the Mongla Customs House for assess¬ment and to release the goods and on com¬pletion of physical verification the Customs Authority raised objection that Bond Licence submitted with the bill of entry is forged but actually the bond licence is an instrument to facilitate the importers to release imported goods with¬out paying any tax. The Solicitor repre¬sented by the State vs. Anisuzzaman Chowdhury and other (Syed J.R. Mudassir HusainCJ)(Criminal)4ADC 177 Sections 409/109 In collusion with each other for illegal gain misappropriated Tk. 11,80,615/- by false billing against consultancy service and thereby committed an offence punish¬able under sections 409/109 of the Penal Code read with section 5(2) of Act II of 1947. Section 561A of the Code of Criminal Procedure praying for quashing the pro¬ceeding and the High Court Division by the impugned judgment and order made the Rule absolute. 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 mak¬ing payment against running bills. We are mindful of the fact that during investigation by police usually the Court does not interfere under section 561A of the Code of Criminal Procedure, but in the present case, in view of the facts and circumstances as noticed above, we con¬sider it 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. The State, represented by the Deputy Commissioner, Gazipur vs. Lailun Nahar Ekram {MM. Ruhul Amin J) (Criminal) 4ADC 264 Sections 147/148/341/323/307/379/365 and 34 That for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further sub¬mits that during the time of alleged occur¬rence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case. That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive sub¬stances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are allegations against some other co-accused of assault, abduction and confinement of the inform¬ant but most of them are enjoying bail. That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dismissed. The State, Represented by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 267 Sections 143/326 Section 498 of the Code of Criminal Procedure before the High Court Division praying for bail and the High Court Division after hearing the parties by the impugned judgment and order allowed bail. Though some explanation has been given in the First Information Report but it can¬not be denied that for an occurrence alleged to have taken place on 03.08.2001 First Information Report has been lodged on 20.04.2002/ 05.05.2002. In the First Information Report it appears that allega¬tions of similar kind have been alleged against accused Nos. 2 to 25 and the learned Additional Attorney General could not rebut the contention that some of the aforesaid accused are enjoying bail and it cannot be said that the respondents do not stand on the same footing with those enjoying the privilege of bail. More so it is also not denied that accused No. 1 against whom specific allegation of firing from the pistil has been laid, has been allowed bail. The State, represent by the Deputy Commissioner vs. Md. Kamaluddin @ Pichi Kamal and ors (Amirul Kabir Chowdhury J) (Criminal) 4ADC 268 Section 34,148,302,326,448 The law is now settled that mere rela¬tionship of the witnesses inter-see or of being related to the deceased does not make them unreliable unless material is brought on record to consider the wit¬nesses of this category is unreliable. The State, represented by the Deputy Commissioner, Chittagong vs. Md. Manzurul Alam (Syed J.R. Mudassir Husain CJ) (Criminal) 4ADC 351 Section 302/34 Inconsistency in the evidence the order of conviction under Sections 302/34 of the Penal Code has been illegal. In view of the facts and circumstances this con¬tention cannot be brushed aside alto¬gether. There is no evidence of any conspiracy or pre plan or premeditation on the part of the two appellants nor it could be proved that they inflicted any injuries upon the deceased nevertheless they joined Aynul Sheikh at the time of occurrence. There is however no evi¬dence that the appellants intended to cause the death of the victim. From the facts and circumstances of the case we think that the acts of the two appellants constitute at best an offence of culpable homicide not amounting to murder pun¬ishable under Section 304, Part I of the Penal Code. We are, therefore, of the view that ends of justice would be met if the two appellants are convicted there¬under. Aynul Sheikh and another vs. The State represented by the Deputy Commissioner, Faridpur (Amirul Kabir Chowdhury J) (Criminal) 4ADC 354 Section 302/34 Making the rule absolute thereby allow¬ing bail to the respondent. The State, represented by the Deputy vs. Kamal Uddin @ Pichchi Kamal (Amirul Kabir Chowdhury J) (Criminal)4ADC 619 Section 302/34 This petition for leave to appeal as well as Jail Appeal Preferred by condemned-prisoner. It appears that the petitioner raised a plea of alibi but failed to substantiate his claim by landing evidence. It further appears that there is no denial to the fact that the deceased were living in the house of the accused-petitioner (P.O. house) on the date and he (accused-peti¬tioner) ever took any attempt to save the life of the deceased. Paritosh Rudra vs. The State (Md. Hassan Ameen J) (Criminal) 4ADC 702 Section 420,409, 471 Job on the basis of false certificate of B.Com (Pass) Examination of Tularam Government College, Narayangonj and thus practised fraud upon the Government in obtaining the job. The State vs. Md. Humayun Hafiz (Md. Ruhul Amin J) (Criminal) 4ADC 705 Section 302/34 Confessional statements were duly recorded in due compliance with the provisions embodied in section 164 Cr. PC. and does not at all demonstrate that those are not inculpatory and so the Court can rely upon those confessional statements. Md. Foridur Rahman® Forid @ Reza vs. The State (Md. Tafazzul Islam J)(Criminal) 4ADC 715 Section 326/302/109/34 That the instant petition has been filed with oblique motive to delay and drag the disposal of the case as previously also a number of applications have been unsuccessfully filed at the instance of accused persons one after another and that the accused petitioner himself made prayer to transfer the case from the court of Druto Bichar Tribunal, Court No.l alleging bias of the learned Judge and accordingly the High Court Division passed an order. Md. Sahidul @ Sahidul Hossain Hannan vs. The State (Amirul Kabir Chowdhury J) (Criminal 4ADC 794 Section 34.304,302 Accused petitoner along with others assaulted aforesaid Bhabaranjan, calling him a cow lifter as a result of which he died. Abdur Rouf Sarder vs. The State (Amirul Kabir Chowdhury J)(Criminal) 4ADC 800 Section 302 During pendency of the appeal the peti¬tioners moved the High Court Division for bail and the High Court Division by the judgment and order dated 23 August 2005 allowed the prayer for bail. Md. Mainul Islam @ Md. Mainul Islam @ Moinul alias Suja vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 803 Section 409 The Rule was issued calling upon the opposite parties to show cause as to why the proceeding in Special Tribunal Case No. 9 of 1991 (in fact Special Case No.9 of 1991) under section 409 of the Penal Code read with section 5(2) Act II of 1947 pending before Special Judge, Rajshahi Division (wrongly written as Special Tribunal Judge by the High Court Division) should not be quashed. Md. Khalequl Islam vs. The State (M.M. Ruhul Amin J')(Criminal) 4ADC 805 Section 313/324/326/34 During pendency of the appeal the respondent Md. Alauddin filed an appli¬cation for bail and he was fugitive from trial for many days during the trial but still was allowed bail by the High Court Division. Appellate Division after hearing the matter passed an order to stay the order of bail granted by the High Court Division till disposal of criminal appeal before the High Court Division direct¬ing the parties to take steps for expedi¬tious disposal of criminal appeal and accordingly the paper books being pre¬pared have been filed and the appeal has been made ready for hearing. Md. Tofeil Ahmed vs. Md. Alauddin and another (Amirul Kabir Chowdhury J) (Criminal) 4ADC 895 Section 148/302/34 Who were assaulted by the dacoits and that out of previous enmity the accused peresons have been implicated in the case falsely. RW.l Abdul Jalil, though an eye witness was told of the occurrence by the victim at the hospital and accordingly he lodged the First Information Report clearly mentioning the names of the petitioners and others. It appears that the trial court after con¬sidering the evidence of eye-witnesses including RWs. 2,3 and 4 passed the impugned judgment and convicted the petitioners. The High Court Division in its turn found them guilty in consideration of evidence on record. However consider¬ing the facts and circumstances of the case the High Court Division took a lenient view and altered the judgment of conviction and reduced the sentence of the petitioners. There is nothing to inter¬fere. Md. AsgarAli alias As gar and oth¬ers vs. The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 897 Section 409/109/471/472 Petitioner and others, who are the offi¬cers and employees of the Bangladesh Bank, Khulna Branch, in collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advice withdrew Tk. 7,25,400/- on 2.8.1992 from the said Bangladesh Bank Enamul Hoque Mollah vs. The State as repre¬sented by the Deputy Commissione (Md. Tafazzul Islam J) (Criminal)4ADC 972 Section 409/109/472 In collusion with each other creating four forged bills of the office of Deputy Director Agriculture Extension Department, Khulna and also creating forged advices. Mirza Saifuddin Hasan vs. The State (Md. Tafazzul Islam J) (Criminal) 4ADC 977 Section 302/324/326/448/34 It appears that the High Court Division as well as this Court elaborately consid¬ered the points raised now by the learned Counsel and accordingly decid¬ed the case. A review is never meant to rehear a matter which has been heard and decided finally. Yogashwar Gope vs.The State (Amirul Kabir Chowdhury J) (Criminal) 4ADC 982 Section 396 Dacoity was committed in the house of the informant In course of dacoity the informant, P.W. 1, recognized some dacoits . The police thereafter took up investiga¬tion, visited the place of occurrence, prepared the sketch map with separate index, examined witnesses and recorded their statement under section 161 of the Code of Criminal Procedure. Saiful Islam Shaikh vs. The State, represented by the Deputy Commissioner, Gopalgonj (Md. Joynul Abedin J) (Criminal) 4ADC 984 Section 364/302/301/34 The petitioner was tried on the charge of kidnapping one Raisuddin uncle of informant Abu Taher on 10.09.1991 and thereafter murdering him and causing disappearance of evidence by conceal¬ing the dead body. Army Habilder Abdul Gafur vs. The State (Amirul Kabir Chowdhury J) (Criminal)4ADC 988 Section 409/420/109 Discharging the Rules and common questions of law being involved in all these petitions, the same are disposed of by this judgment. Abdul Huque vs. The State (MD. Tafazzul Islam J) (Criminal) 4ADC 1004 Sections 29, 361-365— 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 vs State 49 DLR 16 Section 34— The essence of joint liability is to be found in the existence of a common intention animating the accused in the doing of a criminal act in furtherance of such intention. Before application of section 34 of the Penal Code to a case, it must be shown that (1) a criminal act was done by several persons, (2) all of them intended the commission of the criminal act and (3) the criminal act was done in furtherance of the common intention. In the instant case it is not clear that except accused appellant Abul Kalam Azad, the other accused had the intention of causing such bodily injury as was likely to cause the death of Abdul Wadud and even the participation of the other accused in causing death of the deceased is not free from doubt. Abdul Kalam Azad vs State 47 DLR 317. Section 34— This section does not create any distinct offence. It is intended to meet a case where the members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. In means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually, common intention within the meaning of this section pre-supposes a prior concert. There must be a prior meeting of the minds leading to a pre-arranged plan to commit an offence. The common intention to commit the offence invites the application of section 34 of the Penal Code. In offences involving physical violence, the presence of the accused at the scene of the occurrence renders him liable on the principle of joint liability but where the offence consists of diverse acts and it may be committed at different times, the presence of the accused at the scene of the occurrence is not necessary. State vs Tajul Islam 48 DLR 305. Section 34— Unless there is meeting of minds between the accused as to the commission of crime of common intention, the application of section 34 of the Penal Code is improper. Abdul Khaleque and others vs State 48 DLR 446. Section 34, 109 & 149— For application of section 34 some overt act by each of the accused is necessary in the commission of the crime by two or more persons but in the case of application of section 149, if one is found to be a member of the unlawful assembly for the commission of the crime, whether he takes active part in it or not, he comes within its mischief, and so far as section 109 is concerned, it is simply for abetment of the offence committed. Now, in the instant case, according to the prosecution, all the accused planned to commit the murder of the victim and towards that end they started acting and then all together in a joint action with common intention caused the murder of the victim. So, in such circumstances, it is not understood why section 34 will not be attracted in this case, when allegation is to the effect that each one of the accused persons took part in the commission of the alleged crime of murder of the victim Kalam. The question is whether the prosecution has been able to prove the allegation by evidence is a different one. We, therefore find no illegality in framing the charge against the accused under sections 302/34 of the Penal Code apart from other sections of law. Abdul Khayer and 3 others vs State 46 DLR 212. Sections 34 and 149— Section 34 of the Penal Code involves a direct overt act on the part of the accused sharing “a common intention” with others for the commission of an offence while section 149 is essentially a vicarious liability for being a member of an unlawful assembly with the “common object” of committing the offence. These two offences are of different nature. Abu Talukder vs State 51 DLR 188 Section 96— The possession for exercising right of private defence must be a settled possession a peaceful possession for a pretty long time without any resistance. Sarwar Kamal and others vs State 48 DLR 61. Sections 96-104— The onus of proving right of private defence lies on the accused claiming exercise of such right. Sarwar Kamal and others vs State 48 DLR 61. Sections 96-106— The right of private defence of the body extends to the voluntary causing of death if the offence which occasions the exercise of the right is an assault which may reasonably cause the apprehension of either death or grievous hurt. Khandoker Saiful Islam vs State 50 DLR (AD) 126 Section 100— Right of private defence—When the accused had scuffles with the deceased and the fear of retaliation from the deceased party overpowers the mind, it is not possible for him to weigh the position in golden scales. In such a situation when he is faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of private defence. The accused cannot be said to have exceeded the right of self-defence. Ruhul Amin Mondal vs State 49 DLR 250 Section 120B— Jobaida’s jubilation might be the result of her moral support to the activities of her husband (leading to bloodshed and political change) but for that it cannot be said that she was in the conspiracy. Jobaida Rashid vs State, represented by the Deputy Commissioner, Dhaka 49 DLR 373. Section 147— All the accused persons assembled to attack the informant. Though only one accused Abdul Khaleque attacked the informant, other accused are also guilty under section 147 because every member of an unlawful assembly is guilty irrespective of whether he had any overt act or not. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457. Section 148— If both parties are found to have committed offence under section 148 of the Penal Code none of them is entitled to be acquitted on the ground that the other is the aggressor and in this respect law spares none. Bachu Miah vs Samad Miah and others 50 DLR 564 Section 149— The two accused had no premeditation to kill the victim and as such the application of section 149 for tagging them to face trial on murder charge appears to/be illegal. State vs Khalilur Rahman 48 DLR 184. Section 149— When a particular offence is committed by an individual member of the unlawful assembly, which was neither done in prosecution of common object of the assembly nor other members of the assembly lenew that the offence would be committed, other members of the assembly/cannot be held liable for the offence. The word “likely”, in the later part of section 149 of the Code means some clear evidence that an unlawful assembly had such a knowledge. In view of other offenses committed, such as criminal trespass and assault, it is difficult to hold that all the appellants are consecutively liable under section 149 of the Code when Appellant No. l Abdus Sattar alone struck a Katra blow on the right side of the chest of deceased which proved fatal and, strictly speaking, section 149 of the Penal Code is not attracted in this case. There being overwhelming evidence of inflicting Katra blow on deceased Aminul Huq by Appellant No. l, the appeal in respect of Appellant No. l Abdus Sattar is dismissed and his conviction and sentence under sections 302/149 of the Penal Code is altered to section 302 of the Penal Code and his sentence of imprisonment for life is maintained. Abdus Sattar and others vs State 46 DLR (AD) 239. Section 193— If a court finds that any witness committed an offence under section 193, the court is to proceed in accordance with the provisions of section 476 of the Code of Criminal Procedure because the offence under section 193 is included in section 195(l)(b) of the Code. Idris Miah (Md) vs State 50 DLR 629 Section 201— Since both the condemned prisoners are sentenced to imprisonment for life there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. State vs Hamida Khatun and another 50 DLR 547 Sections 202— The accused committed an offence punishable under section 202 of the Penal Code for not giving the information about the offence either to the nearest Magistrate or to the police station. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355 Sections 299 & 300— When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention. State, represented by the Solicitor to the Governemnt of the People’s Republic of Bangladesh vs Ashraf Ali and others 46 DLR (AD) 241. Section 300— When the victim went to bed with her husband and was found subsequently dead there, he bears a serious obligation to account for her death. Abdus Sukur Mia vs State 48 DLR 228. Section 300— When all that the accused intended was to strike his wife and the strike by mistake hit their newly born baby which had led to the killing, such of the accused falls within the purview of exception I of section 300. State vs Abdul Howlader 48 DLR 257. Sections 300 & 302— As there is a possibility that before the occurrence there might have been some sort of altercation between the accused and the deceased or loss of temper by the accused, it cannot be held that it was a premeditated murder. State vs Abdul Khaleque 46 DLR 353. Sections 300 & 396— The word murder appearing in section 396 of the Penal Code and the word murder appearing in section 300 of the” Penal Code is not the same thing. In section 396 the liability of commission of murder is conjoint while commission of murder as defined under section 300 is absolutely an individual liability. Arzan @ Iman Ali vs State 48 DLR 287. Section 302— Motive is not a necessary ingredient of an offence under section 302 of the Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, especially when the case is based on circumstantial evidence. State, represented by the Solicitor, Government of the People’s Republic of Bangladesh vs Giasuddin and others 51 DLR (AD) 103 Sections 302 & 302/149— The High Court Division affirmed the order of conviction and sentence as passed by the trial Court forgetting altogether that the conviction of the appellant was recorded by the trial Court under section 302/149 of the Penal Code which is a completely different kind of conviction from one under section 302 directly where the liability is personal and in the former case the liability is vicarious. Altaf Hossain vs State 50 DLR (AD) 120. Section 300 Explanation 4— Accused Abdul Aziz Mina has acted in a cruel and unusual manner and also took undue advantage in inflicting 4 knife blows on the person of victim Jalal which ultimately caused his death. Therefore, the offence as committed by accused Abdul Aziz Mina does not in any way attract the provision of Exception 4 of section 300 but attracts the provision of section 300 that it is a voluntary infliction of knife blows with the intention of causing death and as such accused Abdul Aziz Mina cannot escape the liability of causing homicide amounting to murder. Abdul Aziz Mina and others vs State 48 DLR 382. Sections 302/34— 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 /mat 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. Sections 302/149— Without a proper finding that the accused had a common object conviction with the aid of section 149 of the Penal Code is illegal. State vs Raisuddin and others 48 DLR 517. Sections 302/34— 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. State vs Abdul Momin Sardar 50 DLR 588 Section 304 Part I— The accused was free to inflict as many blows as he liked—That he dealt merely one blow shows that he did not intend to kill the victim. The killing cannot be termed murder. State vs Khalilur Rahman 48 DLR 184. Section 304 Part II— There was none to stop Rashid to deal repeated blows if he had the intention to kill—he merely had struck one blow which eliminates the intention to kill. Therefore, the intention to kill is lacking—It is not a case of culpable homicide amounting to murder but a culpable homicide not amounting to murder. Abdul Khaleque and others vs State 48 DLR 446. Sections 302 & 304— By inclusion of the offence of the above ordinance in the schedule to the Special Powers Act the jurisdiction of the Sessions Court has been ousted. Now, as the death is proved but not for demand of dowry, the present case is sent back to the Sessions Court for trial. Firoz Miah vs State 51 DLR 37 Sections 302 & 304 Part II— The accused persons might have given the deceased a serious beating to effect divorce of his second wife and this resulted in his death. The offence committed by them does not attract sections 302/109, it attracts provision of section 304 Part II of the Penal Code. Shahajahan Talukder @ Manik and others vs State 47 DLR 198. Sections 302/34— 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. State vs Abdul Momin Sardar 50 DLR 588. Sections 302 & 326— The injury inflicted did not cause instant death. The victim was alive for about 11/2 months at the hospital. This shows the injury inflicted was not likely to cause death, but it endangered the life and ultimately resulted in death. The appellant therefore is guilty under section 326 of the Penal Code. Humayun Matubbar vs State 51 DLR 433 Sections 320, 325 & 326— There is no evidence that any of the injuries endangered the life of any of the victim. There was no fracture, the victims were discharged from the hospital after treatment of several days. There is no evidence to show that any of the victim suffered severe bodily pain for a period of 20 days or unable to follow his ordinary pursuits. So the conviction under sections 326 and 325 of the Penal Code is not proper and legal. Bazlur Rahman Howlader alias Jilu and 3 others vs State, represented by the Deputy Commissioner 51 DLR 457 Section 326A— The offence of gouging out eyes falls with section 326A of the Penal Code. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529. Section 342— 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 and others vs State 51 DLR (AD) 33 Sections 361, 363 & 366A— Age of majority and guardianship—Decision as to custody of a minor pending criminal proceedings—Neither personal law nor Majority Act is relevant for the purpose. The statute that holds good is the Penal Code. If the allegations are that of kidnapping of a minor girl, then for the purpose of her custody, the court has to proceed on the basis that she is a minor if she is under 16. If however the allegations are that of procuration of a minor girl, the court has to proceed on the basis that a girl is a minor who is under 18. Wahed Ali Dewan vs State and another 46 DLR (AD) 10. Sections 363 & 366A— A minor to be taken out of the lawful custody of her guardian as under section 363 must be a minor under 16. A minor under 18 would be referable to section 366A. She cannot be allowed to go whether she attains the age of 18 years. Dr Bimal Kanti Roy vs State and othrs 46 DLR 541. Section 366A— The FIR was lodged under section 366A of the Penal Code. The offence under section 366A is related to a girl under the age of 18 years and not under the age of 16 years. Nurunnahar Khatun vs State 46 DLR 112. Section 366A— In an interlocutory matter concerning custody of a girl, to give a final judgment on her age is to decide an aspect of the merit of the case which is decisive of the case itself. After the decision has been given that the girl is quite major above 18 years, can there be any purpose for a trial which is still pending? The learned Judges should have made it very clear that the finding made by them as to the age of the girl was only for the purpose of deciding the present custody of the victim girl and the trial Court was free to take its own decision upon considering the evidence to be led in the case. That having not been done, it must be said that the impugned judgment suffers from at least impropriety having usurped the powers of the trial Court in a pending criminal case. Khairunnessa vs Illy Begum & another 48 DLR (AD) 67. Section 366A—Age of girl—Physi¬cal appearance—Physical appearance may not always provide a correct guide for ascertaining the age of a girl child who is growing up. In some cases physical development may take place which may be regarded as precocious while in some other cases there may not be as much development as is natural with the passage of time. Having regard to the fact that the available materials supported the claim of the mother that the girl was aged about 15/16 years except the statement of the girl herself, the High Court Division cannot be said to have acted judiciously in ingnoring the materials and relying on the statement of the girl and their own observation of the girl. The mother has a reasonable grievance to make against the judgment which does not seem to have been passed upon a proper appreciation of the materials on record and far less keeping in view the welfare of the victim girl alleged to be a minor. Khairunnessa vs Illy Begum and another 48 DLR (AD) 67. Sections 379 & 447— When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others vs State and another 51 DLR 278. Sections 386, 387 & 390— The distinguishing element between extortion and robbery or dacoity is not the presence of the offender but the presence of imminent fear and also the delivery of possession of goods to the offender, the actual delivery or possession of property by the person put in fear is the essence of the offence of extortion. Where a person through fear passively allows, his property to be taken away the offence committed will be robbery or dacoity and not extortion. The Special Tribunal had no jurisdiction to try this case as the offence alleged against does not come either under section 386 or section 387 of the Penal Code, but it is more in the nature of a robbery or a dacoity. Dulal Howlader and others vs State 48 DLR 269. Section 396— Dacoity with murder—When a murder is not committed in the course of committing dacoity there can be no conviction under section 396 of the Penal Code. Since the prosecution has failed to prove the commission of dacoity and murder of victim Tajul by the condemned-prisoner and his associates by any cogent and reliable evidence the order of conviction is not sustainable in law. State vs Mesbahuddin 49 DLR 245. Sections 406/420— 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 409— The accused having withdrawn money of the account holder PW2 upon a previous understanding between them, the trial Court misdirected itself in assessing evidence in the case in its true perspective and thereby wrongly convicted him. AKM Mohiuddin vs State 50 DLR 447. Section 415— The initial intention to deceive must be established to justify a conviction of cheating and the intention is to be gathered from the surrounding circumstances. Arifur Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180. Section 420— 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 scrutinize 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 420— The first information report having made out an allegation that the informant was persuaded by the petitioner to part with his money through a clever device and was ultimately threatened with murder for demanding repayment of the money, the initial intention to deceive appears on the face of the First Information Report. Nurul Islam vs State and another 49 DLR 464 Section 420— An offence under section 138 of the Negotiable Instruments Act is for dishonour of a cheque simpliciter for insufficiency of fund, etc. whereas an offence under section 420 of the Penal Code for cheating is a distinct offence. The rule of law about the peremptory application of the special law in place of the general law for trial of an offence hardly applies when the offences are distinct under the two laws. Nurul Islam vs State and another 49 DLR 464 Section 420— Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges if elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act. State vs Md Iqbal Hossain and others 48 DLR (AD) 100. Sections 420 & 406— From reading of section 48 of the Act we do not find that institution of this case under Penal Code is barred under section 48 of the Act by an explicit provision of this Act. Salahuddin (Md) and others vs State 51 DLR 299 Sections 447 & 379— When growing of the case crops by the complainant and the cutting and taking away of the same dishonestly by the accused are proved, the accused is guilty of theft. When theft of the case crops by the accused by cutting and taking away of the same and damaging some crops in the process necessarily involves their entry into the case land and the accused are punished for theft and mischief, a separate conviction under section 447 Penal Code is unwarranted. Motaleb Sardar (Md) and others vs State and another 51 DLR 278. Section 463— To find one guilty of forgery there must be an original document first. In the absence of the original one, it cannot be said that the resolution by the Bar Association dated in question is a forged resolution. SA Alim vs Dr Md Golam Nabi and another 48 DLR 98. Sections 463 & 464— Ante-dating of a document with any of the intentions such as causing damage or injury to a person by way of depriving him of his right already acquired by a kabala constitutes forgery. Amatutnnessa transferred her entire interest to the appellant by the kabala executed and registered by herself of 18-7-75 (Ext. l) and was thereafter left with nothing for subsequent transfer to anybody, but she executed the subsequent kabala (Ext.4) in favour of her brother accused Syeduzzaman conveying the same land by ante-dating the kabala showing that it had been executed earlier than the appellant’s kabala. Execution of the subsequent kabala shows her intention to deprive the appellant of his right already acquired by his kabala which was found to be genuine. “Forgery” means making of a false document with certain intentions, such as to cause damage or injury to a person, to support any claim or title, to commit fraud. Amjad Molla vs Syeduzzaman Molla and others 46 DLR (AD) 17. Section 464— Unless there is an element of fraud or intention to cause damage or injury to the public or any person the document or part thereof cannot be called as forged document. Mere signing of the petitioner in another’s name who did not give authority to 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. Abul Kashem Bhuiyan vs State 50 DLR 631 Section 467— To secure a conviction for forgery in this case it must be specifically proved that the executant by reason of unsoundness of mind or intoxication or by reason of deception practiced upon him did not know the contents of the document and in such state he was made to execute the document by the accused. Showkat Hossain Akanda Chowdhury vs State 50 DLR (AD) 128 Section 471— For the offence under section 471 of the Penal Code an accused can be punished as provided in section 465 of the Penal Code up to 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah vs State 50 DLR (AD) 96 Section 471— The High Court Division is palpably wrong in holding that when an accused is convicted and sentenced under section 466 he cannot again be convicted and sentenced under section 471 of the Penal Code. In the present case it has been proved that the recall order was used by Nurun Nahar Begum in getting Khijiruddin released from the Thana. The accused-petitioner was certainly an abettor in so far as section 471 of the Penal Code is concerned. Azizul Hoque (Md) vs State 51 DLR (AD) 216 Section 493— The prosecution is required to prove that some form of marriage or an apology for conducting a marriage took place and as a result of which the woman had a belief in her mind that she was the lawfully married wife of the accused. In the facts and circumstances of the case and the evidence on record, it is difficult to comprehend how such a grown up woman with sufficient worldly knowledge would bonafide believe that she was the legally married wife of accused Hanif on his mere promise to marry her in the future and on such fond belief she surrendered herself to the carnal desire of the accused petitioner, which eventually led to her conception. Hanif Sheikh (Md) vs Asia Begum 51 DLR 129 Section 494— Marrying again during lifetime of wife—framing of charge under this section was wrong because the Muslim Family Laws Ordinance or any other law does not render second marriage, during the subsistence of the earlier marriage, void. A person can be charged under section 494 Penal Code only when such marriage is void. In is apparent that the Magistrate committed error of law in framing charge under section 494 of the Penal Code instead of under section 6(5) of the Muslim Family Laws Ordinance, 1961. No doubt the accused petitioner pleaded guilty and the conviction is based upon that plea only. But the guilty pleading of an accused person cannot cure the inherent defect in the charge or in the conviction. Masud Ahmed vs Khushnehara Begum and another 46 DLR 664. Section 499, 8th Exception— Complaint made by the petitioners in good faith to the Hon’ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by exception. Abdur Noor and others vs State and another 50 DLR 456 Section 500— Had the complainant sent a rejoinder to the petitioner and the same was not published then it could be said that the petitioner did not act in good faith and for public good. Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176. Section 500— Further prolongation of the case against the accused, for publishing the alleged report which has not even been claimed to be entirely baseless in the petition of complaint will be an abuse of the process of the court. Shahadat Chowdhury vs Md Ataur Rahman 48 DLR 176. PENAL CODE, 1860 Penal Code, 1860 Section 21 – Member of Parliament is not a public servant Section 409 – Transfer of duty-free imported vehicle does not constitute punishable offence. The petitioner a member of the Parliament and not being a public servant who imported the duty-free vehicle is the owner thereof. When he transferred the vehicle as alleged in violation of the conditions of the SRO No. 266 dated 22.8.2005 he incurred the liability of the payment of customs duties and penalties which he already paid as adjudicated by the customs authority. The allegations do not constitute offence under section 409 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. The learned judges quashed the impugned proceedings as being one abuse of the process of the court. Shahidul Islam (Mohd.) @ Mufti Shahidul Islam Vs. National Board of Revenue, represented by its Chairman and others 13 MLR (2008) (HC) 441. Penal Code, 1860 Section 34 – Joint liability Unless there is participation of the accused in the commission of the offence in furtherance of their common intention, section 34 is not attracted. Mere presence in or near the scene does not make the person liable under section 34 of the Penal Code. Aminul Islam and others Vs. The State 12 MLR (2007) (HC) 21. Penal Code, 1860 Section 109 – offence of abetment Prevention of Corruption Act, 1947 Section 5(2) – Punishment for criminal misconduct Criminal Law (Amendment) Act, 1958 Section 9 – Provides for confiscation of property to the extent connected with the offence When the charges under section 5(2) of the Prevention of Corruption Act, 1947 read with section 109 of the Penal Code Penal Code, 1860 are established section 9 of the Criminal Law (Amendment) Act, 1958 imposes a duty upon the trial judge whether he imposes a sentence of imprisonment or not, he shall impose a sentence of fine and pass an order confiscating the property of the accused connected with the offence. The apex court held that the confiscated property cannot be restored to the offender. M.A. Sattar and others Vs. The State 14 MLR (2009) (AD) 168. Section 120B and 302/34 – Criminal conspiracy leading to commission of murder when established can be punished with the same sentence as in the case of principal accused. When charge of criminal conspiracy and murder of two judges are proved by convincing evidence beyond shadow of all reasonable doubt the conviction of the convict-petitioners and sentence of death are held by the apex court perfectly justified. The convict-petitioners who are the top leaders of the JMB a perverted Islamic militant group admitted their participation in the criminal conspiracy leading to the commission of murder of two judges at Jhalakathi having been found guilty of the offence charged with and having found them a serious threat to the life and security of innocent people have been sentenced to death. The High Court Division accepted the death reference and Appellate Division found no fault with the conviction and sentence and dismissed their petitions for leave to appeal. Shaiakh Abdur Rahman & five others Vs. The State. 12 MLR (2007) (AD) 80. Sections 148/304/34 – Charges against several accused need to be proved by specific evidence – When there is sharp contradiction in between the medical evidence and the ocular evidence as regards the number of injuries alleged to have been inflicted on the person of the deceased and the conviction and sentence are based on omnibus statements of the witnesses, the learned judges held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. the State 12 MLR (2007) (HC) 202 Section 302/120B – Murder committed in consequence of conspiracy Charge of murder has to be proved by the evidence, facts and circumstances of the case. Guilt of the accused cannot be proved by his character. Circumstance must be of such nature that it leads to the irresistible conclusion as to the guilt of the accused and must be incompatible with the innocence of the accused. The conspiracy alleged must not be remote so to have no nexus with the commission of the murder. Further the witness to such conspiracy must be natural and must be worthy of credence and inspire confidence of the court. State and another Vs. Shahidur Rahman @ Shahid and another 14 MLR (2009) (AD) 358. Section 161 – Laying trap to catch hold of the accused red handed while taking bribe. Anti-Corruption Commission Rules, 2007 Rule 16 – To lay and conduct trap to catch hold of an accused red handed and the requirement of the officer so conducting trap to be empowered by the Anti-Corruption Commission. To empower an officer by the Commissioner in charge of investigation to lay trap and conduct the proceedings as required under rule 16 of the Anti- Corruption Commission Rules, 2007 is the mandatory requirement of law. In the absence of such empowerment or authorization the learned judges held the proceedings illegal and abuse of the process of the court and as such quashed the same. Rezaul Kabir (Md.) State and another 14 MLR (2009) (HC) 482. Penal Code, 1860 Section 302/34 – Charge of murder proved by circumstantial and other corroborative evidence including confessional statement Sentence of death is held to be appropriate. The charge of cold blooded murder of her daughter with the participation of the co-convict in a gruesome manner appears to have been proved beyond doubt by strong circumstantial evidence and confessional statement of the condemned prisoner corroborated by other independent evidence and there being no mitigating factor the High Court Division having been in complete agreement with the trial court confirmed the death sentence under section 374 of the Code of Criminal Procedure. The State Vs. Rokeya Begum and another 11 MLR (2006) (HC) 63. Penal Code, 1860 Section 302/34 – Participation of all the accuseds in furtherance of their common intention to commit murder is essential to attract section 34. Conviction and sentence can well be based on the evidence of a solitary eyewitness and extra-judicial dying declaration. Section 34 of the Penal Code, 1860 is attracted when the accused in furtherance of their common intention participated in the commission of the murder. Conviction and sentence based on the evidence of a solitary eye witness and the extra-judicial dying declaration are held by the apex court perfectly justified. Enamul Huq and another Vs. The State 11 MLR (2006) (AD) 422. Penal Code, 1860 Section 302 – Liability of husband in wife killing case Commutation of sentence of death into life imprisonment in the absence of any extenuating circumstances is held by the apex court not appropriate. Law has by now been well settled that the husband while they were living in the same house at the time of occurrence has liability to explain as to how his wife was killed. When the husband fails to offer any satisfactory explanation presumption raises as to the guilt of the husband and the plea of his innocence falls to the ground. Abu Sayed (Saked) Vs. The State 12 MLR (2007) (AD) 101. Penal Code, 1860 Section 302/34 – Sentence of death is commuted to life imprisonment in view of absence of special brutality in committing the murder. Though the charge under section 302/34 of the Penal Code was found established beyond all reasonable doubt by the prosecution, the High Court Division in the Death Reference commuted the sentence of death into imprisonment for life in view of the death of the deceased being committed without special brutality. The apex court held the decision of the High Court Division perfectly justified. State Vs. Joinal Fakir and another 13 MLR (2008) (AD) 62. Penal Code, 1860 Section 302 and 304 – Several injuries inflicted even though not on the vital part of the body of the deceased which are likely to cause death and when in consequence thereof the death actually occurred, certainly constitute affiance punishable under section 302 of the Penal Code and not under section 304. Syed Nurul Azim Babar Vs. The State 14 MLR (2009) (AD) 364. Penal Code, 1860 Section 302/34 – Acquittal of accused in a murder case on ground of benefit of doubt based on hypothesis not supported by materials on record has been strongly disapproved by the apex court – The inmates of the house in whose presence the deceased was murdered at dead of night are the natural witnesses whose evidence cannot be discarded by reason of their relationship with the deceased. Though corroboration by independent witness in a case where enmity exists between the witness and the accused is a rule of prudence but it is not inflexible rule. When time of occurrence is specifically mentioned by the prosecution in the F.I.R non-mention of the age of the injury of the deceased in the post mortem examination report is immaterial. State Vs. Abdul Kader alias Kada and others 13 MLR (2008) (AD) 86. Penal Code, 1860 Section 302 – When charge is established beyond all reasonable doubt with reliable evidence conviction and sentence awarded thereon can well be sustained. Allegation of enmity does not always diminish the evidentiary value of ocular evidence. Again absence of blood in the place of occurence by itself does not render ground to disbelieve the prosecution case. Motive when attributed but not proved is not also always fatal to the prosecution case. Yogashwar Gape Vs. The State 11 MLR (2006) (AD) 226. Code, 1860 Section 302 – Liability of husband in a case of murder of his wife when he was not in the house of occurrence at the relevant time. Evidence Act, 1872 Section 106 – Liability of the husband to explain how his wife met her death. In this jail appeal the condemned prisoner, from the evidence on record, is found by the Appellate Division, was not in the P.O. house at or about the time of occurrence and as such he cannot be held liable under section 106 of the Evidence Act to explain as to how his wife and three years old daughter met their tragic death. In that view of the matter the apex court held that the prosecution could not prove the charge beyond all reasonable doubt and allowed the appeal. Mokter Hossain Khan (Md.) Vs. The State 13 MLR (2008) (AD) 186. Penal Code, 1860 Section 302/ 333 I 224/34 – Charge has to be proved by consistent and reliable evidences. Evidence Act, 1872 Section 114 (g) – Withholding material witness/ evidence raises adverse presumption against prosecution case The trial court convicted accused and awarded death penalty. The High Court arterial evidence which created doubt as to the time, place and manner of occurrence and came to the finding that the deceased might have received injuries elsewhere and accordingly rejected the Death reference and acquitted the accused which the Appellate Division found appropriate and dismissed the appeal preferred by the state. State Vs. Md. Mukul alias Swapan 13 MLR (2008) (AD) 246. Penal Code, 1860 Section 302 – Husband liability to explain the circumstances under which his wife was done to death. Law is well settled that the husband is under the obligation to explain as to how his wife met her death when both of them were residing in the same house at the relevant time. In the instant case the husband convict-appellant having failed to offer any satisfactory explanation was sentenced to death by the trial court which the High Court Division in the facts and circumstances commuted into imprisonment for life. The Appellate Division upheld the sentence since commuted as perfectly justified. Abul Hossain Vs. The State 14 MLR (2009) (AD) 30. Penal Code, 1860 Sections 302 and 304 – Absence of intention to cause the death brings the offence of culpable homicide not amounting to murder within the ambit of section 304 of the Penal Code. State Vs. Jahedul Islam @ Moulvi Babu 14 MLR (2009) (AD) 258. Penal Code, 1860 Section 302 – Charge of murder when established beyond all reasonable doubt and when there is no mitigating factor, the death is held to be the proper sentence. When the wife who was living with his husband in the same house and the defence was found false and the charge of murder stood proved beyond all reasonable doubt and there exists no mitigating factor the apex court held the sentence of death perfectly justified. Alamuddin alias Sha pan Vs. The State 14 MLR (2009) (AD) 301. Penal Code, 1860 Section 302/34 – Charge of murder Section 300 Exception 4 – Ingredients of exception when not established, the accused cannot get the benefit of this exception. In the instant case the accused could not fulfil the ingredients of section 300, exception 4 and on the contrary the prosecution having established the charge under section 302/34 of the Penal Code beyond all reasonable doubt the High Court Division dismissed the appeal which the Appellate Division found nothing to interfere. Mohammad Mostafa alias Dayemuddin and another Vs. The State 24 MLR (2009) (AD) 334. Penal Code, 1860 Section 302 – Charge of murder when found based on confessional statement of accused supported by other relevant evidence-Convict appellant was last seen with the victim. The chapati used in committing the murder of the victim was recovered at the showing of the accused who surrendered before the police and made confessional statement recorded under section 164 Cr.P.C. The confession was found voluntary and true. The unbroken chain of events of the occurrence unerringly pointing at the guilt of the accused were proved beyond all reasonable doubts. The Appellate Division held the convict-appellant has been rightly convicted and sentenced. Shajahan Ali (Md.) alias Md. Shajahan Vs. The State, represented by the Deputy Commissioner, Kishoreganj 14 MLR (2009) (AD) 325. Penal Code, 1860 Section 302/34- Charge of murder- Evidence of partisan witness when does not appear to be tainted with bias can well form the basis of conviction. Non-examination of some of the chargesheeted witnesses when does not cause any prejudice to the accused, it does not raise any presumption adverse to the prosecution. Zakir Hossain and another Vs. The State 14 MLR (2009) (AD) 211. Penal Code, 1860 Section 302/34 – Charge of murder- Recognition of the accused in the light of full moon. Evidence of witness cannot be discarded on the ground of relationship with the deceased. The trial court upon scrutiny of evidence on record and the facts and circumstances convicted the accused and awarded the sentence of death. The High Court Division accepted the reference. The Appellate Division affirmed the conviction and sentence as being perfectly justified. Talebuddin (Taleb) ( Vs. The State 15 MLR (2010) (AD) 454. Penal Code, 1860 Section 302- Charge of murder must be proved beyond all reasonable doubt by evidence of independent and reliable witness. The judge must be more scrutinizing to exclude the possibility of false implication of the accused when there is enmity between the parties. Sharafat Mondal and others Vs. The State 11 MLR (2006) (HC) 168. Penal Code, 1860 Section 302 – Penalty of life imprisonment is held to be appropriate in a case based on circumstantial evidence. Where in a case prosecution is entirely based on circumstantial evidence and there is no ocular evidence of the occurrence and the accused is defended by inexperienced lawyer appointed by the state, the learned judges of the High Court Division held the sentence of imprisonment for life to be appropriate instead of the death sentence and accordingly commuted the sentence of death into one of imprisonment for life. Md. Hashem Vs. The State 11 MLR (2006) (HC) 45. Penal Code, 1860 Section 302 – Charge of murder must be proved beyond all reasonable doubt by consistent and reliable evidence. Conflict between medical evidence and ocular evidence as to the injuries and non-examination of material witness give rise to adverse presumption against the prosecution case, resulting in the acquittal of the accused on benefit of doubt. ljmaruddin alias Dana Miah Vs. The State 11 MLR (2006) (MC) 231. Penal Code, 1860 Sections 302/34,382- Charge of murder and theft – When the evidences are sharply contradictory- No conviction sustainable in law. When the evidences given during trial sharply contradict with the recitals of the FIR as to recognition and of the names of the accused, the prosecution story becomes doubtful and as such the conviction and sentence awarded thereupon cannot be sustained. Neza @ Nizamuddin and others Vs. The State 11 MLR (2006) (HC) 299. Penal Code, 1860 Section 302 – Charge of murder Section 84- Exception as to criminal liability- Plea of insanity has to be proved by the defence Code of Criminal Procedure, 1898 Section 465- Procedure of trial of person of unsound mind When the defence established by preponderance of convincing evidences that the accused-appellant was not mentally sound and was incapable of understanding the nature of his act, he is entitled to the exemption as provided under section 84 of the Penal Code. The learned judges of the High Court Division found the trial judge failed to follow the procedure of trial as contemplated under section 465 Cr.P.C which vitiated the trial and as such set- aside the conviction and sentence giving the convict-appellant benefit of section 84 of the Penal Code. Wally Ahmed alias Babi Vs. The State 13 MLR (2008) (HC) 375. Penal Code, 1860 Section 302/34- Charge of murder and the nature of proof-The cardinal principle of criminal jurisprudence is that an accused shall be presumed to be innocent until his guilt is proved by consistent evidence beyond all reasonable doubt. In case of two versions coming from the prosecution side the one more favourable to the accused shall be accepted. When the charge depends entirely upon circumstantial evidence, such circumstance having unbroken chain of events must be so strong unerringly pointing at the guilt of the accused and nothing else. Contradictions in evidence on material joints made the prosecution case doubtful. Dabir Uddin and others Vs. The State 14 MLR (2009) (HC) 181. Penal Code, 1860 Sections 302/34, 417 – Appeal against acquittal – Government did not prefer appeal against acquittal. The informant preferred this appeal. The victim was murdered in a broad day light. The learned judges of the High Court Division upon scrutiny found sufficient evidence on record which can well warrant conviction of the accused. Accordingly the appeal is allowed and the order of acquittal is, set aside and the case is sent back for retrial and disposal. Mokdus Ail Vs. Afiz Ali and others 15 MLR (2010) (HC) 318. Penal Code, 1860 Section 304- Offence of culpable homicide not amounting to murder- Postmortem Examination Report when does not support, the prosecution case becomes doubtful. Since the postmortem report categorically states that the deceased died of some disease and the evidences of the P.W.s are discrepant on material points, the learned judges of the High Court Division found the charge not established beyond doubt and as such acquitted the convict-appellants. Sheringir Mollah and others Vs. The State 13 MLR (2008) (HC) 341. Penal Code, 1860 Section 304/34 – Conviction cannot be based on omnibus statement of the prosecution witness Charge must be established by specific and reliable evidence. Several accuseds cannot be convicted on the basis of omnibus statements of the prosecution witness. When the evidence of the eye witnesses do not support the injuries of the victim mentioned in the post mortem report and the evidence of the other material witness stand in sharp contradiction, the learned judges of the High Court Division held the conviction and sentence not sustainable in law. Matiar Rahman and others Vs. The State 11 MLR (2006) (HC) 437. Penal Code, 1860 Section 304 – Part I – Offence of culpable homicide not amounting to murder- Section 34- Is attracted when the accuseds in furtherance of their common intention participate in commission of the offence Section 34 does not create substantive offence. It lays down the principle of joint liability. Participation in the commission of an offence in furtherance of common intention attracts the section. Fundamental principle of administration of criminal justice is that until an accused is conclusively proved to be guilty of an offence beyond all reasonable doubt he shall be presumed to be innocent. An accused may be acquitted on the benefit of doubt. But such benefit of doubt must be based on evidence on record and the facts and circumstances of the case and not be imaginary or fanciful doubt based on surmise or conjecture. 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. Penal Code, 1860 Section 302- In case of murder with extreme brutality death is the proper sentence Where there is mitigating circumstance the alternative sentence of imprisonment for life is the appropriate sentence. Sentence must be proportionate to the nature and gravity of the offence. State Vs. Anjuara Khatun 12 MLR (2007) (HC) 214. Penal Code, 1860 Section 302/34 – Sentence for the offence of murder is either death or imprisonment for life When the charge of murder under section 302 read with section 34 of the Penal Code is proved beyond doubt, the trial court shall have to award upon conviction of the accused the sentence of either death or the sentence of imprisonment for life in cases where there is certain extenuating circumstances. The learned judges of the High Court Division took serious view about the poor knowledge of the Additional Sessions Judge who awarded sentence of 7 years rigorous imprisonment to eight accused under section 302/34 of the Penal Code. Rasheduzzaman @ Nayon and eight others Vs. The State 12 MLR (2007) (HC) 128. Penal Code, 1860 Section 302 – Conviction and sentence not based on any legal evidence are not sustainable Convicting the appellant on the basis of evidence of court witnesses and acquitting the other 41 accused including those against whom there are sufficient convincing evidence of ocular witness by the cryptic and unintelligible judgment are viewed by the learned judges of the High Court Division with strong disapproval who also expressed their surprise at the failure of the state functionaries in not preferring appeal against the acquittal in such a case of double murder committed in broad day light. Kala Mia Vs. The State 12 MLR (2007) (HC) 232. Penal Code, 1860 Section 302/34- Charge of murder committed in furtherance of common intention. Evidence of witnesses related to each other who appear to be natural and reliable cannot be discarded only on the ground of their relationship. In the instant case the vital witnesses though related to each other consistently proved the charge and as such the learned judges of the High Court Division having found nothing to interfere with the conviction and sentence dismissed the appeal with certain modification as to appropriate section of law and entitlement of the benefit under section 35A Cr.P.C. Abu Sayed Gain alias Sáyed Ahméd Gain and another Vs. The State 14 MLR (2009) (HC) 237. Penal Code, 1860 Sections 302 and 304 – Culpable homicide when committed without the intention to cause death or in a state of provocation and loss of self-control falls under section 304 of the Penal Code In the instant case it is clearly established that the accused appellant caused the injury on the head of the deceased in the midst of quarrel and in a state of loss of self-control. The victim died in the next day of the occurrence. The offence in the facts and circumstances falls within the ambit of section 304 and not under section 302. The learned judges of the High Court Division having regard to the position of law upheld the conviction but altered the sentence of imprisonment for life into 10 years RI under section 304 of the Penal Code. Aynul Huq Vs. The State 14 MLR (2009) (HC) 278. Penal Code, 1860 Section 302/201- Husband liability in a wife killing case when both of them were living in the same house at the time of occurrence In the instant case the plea taken by the husband as to the wife committing suicide having failed and the charge of murder established beyond all reasonable doubt pointing unerringly at the guilt of the husband the conviction and sentence as modified by the High Court Division are affirmed by the apex court. Azam Reza Vs. The State 15 MLR (2010) (AD) 219. Penal Code, 1860 Section 314- Charge of causing miscarriage with the consent of the victim falls under part-I of Section 314 Miscarriage was caused to the victim Anwara Begum by administering herbal plant in her uterus as a result of which she died in the Hospital. From the evidence it appeared that she was a consenting party to the miscarriage. In that view of the matter the charge falls under part I of section 314 of the Penal Code punishable with imprisonment for a term which may extend to 10 years. But the convict appellant has been awarded a sentence of imprisonment for life. The learned judge of the High Court Division upon consideration of the evidence on record allowed the appeal in part with modification, of sentence for five years imprisonment. Raquib Sheikh (Md.) Vs. The State 11 MLR (2006) (HC) 80. Penal Code, 1860 Section 380 – Allegations of theft by husband against wife do not constitute punishable offence Allegations of theft made by the husband against the wife during the subsistence of marriage do not constitute punishable offence. The learned judges of the High Court Division having found the proceedings abuse of the process of the court quashed the same in exercise of the power under section 561A Cr.P.C. Sabina Rahman Mukti and others Vs .The State 13 MLR (2008) (HC) 347 Penal Code, 1860 Section 394- Charge held established – Recognition by voice Code of Criminal Procedure, 1898 Section 154 – Delay in lodging FIR when explained is not fatal for the prosecution In the instant case the convict-petitioner remained absconding after his release on bail and the trial was held in his absence in which he was convicted and sentenced. The delay of two days in lodging F.I.R was satisfactorily explained. The plea that the petitioner is not the actual accused which the apex court rejected as it is raised at such a belated stage. It is further held the charges were amply proved and the recognition of the accused by voice was established. The Appellate Division in the facts and circumstances dismissed the leave petition. Rana (Md.) Vs. The State, represented by the Deputy Commissioner, Joypurhat 15 MLR (2010) (AD) 173. Penal Code, 1860 Section 394- Charge must be established by consistent and reliable evidence In a criminal trial the charge framed should contain specifically the particulars of time, place and manner of occurrence. Again the court must bring to the notice of the accused while being examined under section 342 Cr.P.C. The incriminating materials on record. The charge shall have to be proved by consistent and credible evidence. When the mandatory requirements are not complied with, such non-compliance causes prejudice to the accused occasioning failure of justice and as such the conviction and sentence passed therein cannot be sustained in law. Shahid Mia and another Vs. The State and another 13 MLR (2008) (HC) 303. Penal Code, 1860 Section 395 and 397 – Offence of dacoity Code of Criminal Procedure, 1898 Section 439- Allowing the benefit of acquittal to non-appealing convicts Confessional statement of an accused cannot be used against other co-accused without corroboration. When the conviction and sentence is not based on any legal evidence the same cannot be sustained in the eye of law. Benefit of acquittal can well be allowed to non-appealing convicts. Abdus Sattar @ Sottar Vs. The State 11 MLR (2006) (HC) 367. Penal Code, 1860 Section 396- Charge need to be proved by legal evidence- Code of Criminal Procedure, 1898 Section 164- Confessional statement recorded by Magistrate after keeping the accused in police custody beyond the statutory period is held to be not voluntary. In case of capital punishment the charge must be proved by legal evidence beyond reasonable doubt. Confessional statement of an accused recorded under section 164 Cr.P.C. keeping him in police custody beyond the specified period without explanation is held not voluntary and as such cannot be the basis of conviction without independent corroborative evidence. State Vs. Mofizuddin and others 11 MLR (2006) (AD) 76. Penal Code, 1860 Section 396- Offence of dacoity- Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266. Penal Code, 1860 Section 396- For the Commission of dacoity with murder every member of the gang is equally liable. Evidence Act, 1872 Section 134- No particular number of witness is required to prove the charge. Conviction and sentence may be based on evidence of a solitary eye witness- Section 27- Statement of an accused in police custody leading to the recovery of incriminating material is admissible in evidence- Alibi taken must be established by the accused by producing convincing evidence. Code of Criminal Procedure, 1898 Section 164 – Confessional statement of an accused has to be recorded in accordance with the provisions of section 364 Cr.P.C. Absconsion of an accused from immediately after the occurrence may be a circumstance pointing at the guilt of the accused. Sentence must be proportionate to the nature and gravity of the offence committed. In order to secure conviction of an accused the prosecution must prove the charge against him by consistent and reliable evidence beyond all reasonable doubt. Evidence of a solitary eye witness can be the basis of conviction. Confessional statement though not binding upon other co-accused may be considered as corroborative evidence against the other co-accused and along with other evidence can form the basis of conviction. State Vs. Gaush Mea @ Rana (Md.) and others 11 MLR (2006) (HC) 417. Penal Code, 1860 Section 398- Charge held not proved beyond doubt when the evidences are sharply contradictory and material witnesses are withheld- In the instant case the Investigating officer and the Magistrate who recorded the confessional statement of the convict appellant have not been examined by the prosecution without any satisfactory explanation. On the contrary the evidences of the witnesses so far examined are full of contradictions. In such circumstance the learned judges of the High Court Division held the charge not proved beyond reasonable doubt and acquitted the convict-appellants. Latif alias Md. Latif Miah and Rabiuzzal Hossain Vs. The State 13 MLR (2008) (HC) 410. Penal Code, 1860 Section 406 and 420- Charge of misappropriation and cheating when does not lie- Code of Criminal Procedure, 1898 Section 561A- Quashment of proceedings disclosing no offence for preventing abuse of the process of the Court. The members of the partnership or Managing Director of Private Limited Company are the trustees of the money held in their control for running the business. No charge of misappropriation and cheating under section 406 and 420 of the Penal Code lie against them. Remedy lies in suit for accounts to be filed in appropriate forum. Therefore the, apex court quashed the proceedings. Anarul Islam (Md.) and others Vs. The State and another ii MLR (2006) (AD) 198. Penal Code, 1860 Section 406 and 420- Appropriation of loan money does not constitute offence of criminal misappropriation. Transfer of Property Act, 1882 Section 66 – Disposal of mortgaged property on imminent danger of destruction. Title of money taken on loan passes to the loanee and as such appropriation thereof does not constitute offence punishable under section 406 and 420 of the Penal Code. Moreover the loanee is entitled under section 66 of the Transfer of Property Act, 1882 to dispose of the mortgaged property under danger of being perished. Mahbub Alam Khan (Md.) Vs. The State 14 MLR (2009) (HC) 197. Penal Code, 1860 Section 406 and 420- Prevention of Corruption Act, 1947 Section 5(2) – Restriction on transfer of imported duty free vehicle by M.P. is three years. The transfer made after the expiry of the period of restriction for three years, the transfer of the vehicle imported duty free by a member of the Parliament does not constitute offence punishable under section 406, 420, 109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. The proceedings being abuse of the process of the court the learned judges of the High Court Division quashed the same. Showkat Ail (Mohd.) Vs. National Board of Revenue, represented by its Chairman and others 14 MLR (2009) (HC) 224. Penal Code, 1860 Section 406, 420, 467, 468, 476, 121A and 109- Proceeding drawn on allegations of criminal misappropriation and cheating. When a money suit has been instituted for realisation of money due on account of supply of certain goods, the subsequent criminal proceedings over the self same matter is held by the learned judges of the High Court Division not competent as being one aimed at harassing the party accused therein and as such quashed the same. Mark Parco and others Vs. State and another 13 MLR (2008) (HC) 350. Penal Code, 1860 Sections 406, 409, 467, 468 and 471- Allegations of forgery can be decided at the time of trial. As the allegations of forgery can be decided at the time of trial and as the charge in the instant case has not yet been framed, the proceedings cannot be quashed at this stage. Since the alleged document was not used as evidence in any judicial proceedings before any court, section 195(1) Cr.P.C does not stand as a bar against the present proceedings. Khizir Haider and others Vs. The State 13 MLR (2008) (AD) 157. Penal Code 1860 Sections 406 and 420- No offence is constituted when there is no entrustment and element of deception. Issuance of post dated cheque for payment of part of unpaid money arising out of contractual agreement and the dishonour of the cheque do not constitute offence punishable under section 406 and 420 of the Penal Code. The proceedings initiated thereon being abuse of the process of the court are quashed. Baby Masum and Abdul Kader Vs. State 14 MLR (2009) (HC) 458. Penal Code, 1860 Section 406 and 420- Trial of case when the offence attract both the special law and general law. Emigration Ordinance, 1982 Section 23- offence of receiving money on the pretext of providing foreign employment – The offence under section 23 of the Emigration Ordinance is triable by special court consisting of the chairman labour court. Such special court cannot try offence under other law. In the instant case the ingredients of both the offence under Penal Code and special law are present. The learned judges of the High Court Division held that the proceedings either in the special court or in the ordinary court are maintainable. Phulbanu alias Phul (Mst.) Vs. The State 15 MLR (2010) (HC) 332. Penal Code, 1860 Sections 408, 409, 420- Offence of misappropriation when not committed by a public servant – not triable by Special Judge. Prevention of Corruption Act, 1947 Section 5(2)- Headmaster of a private High School being not a public servant, section 5(2) is not attracted In the instant case the accused petitioner who is a Headmaster of a private High School is not a public servant within the meaning of section 21 of the Penal Code. So the offences complained of are not triable by the Special Judge. The learned judges of the High Court Division having found the impugned proceedings abuse of the process of the court and corum non-judice quashed the same. Aminul Islam Khandaker (Md.) Vs. The State 14 MLR (2009) (HC) 421. Penal Code, 1860 Section 409, 468 and 477A- Offence of misappropriation and falsification of account. Prevention of Corruption Act, 1947 Section 5(2) – Criminal misconduct- Subsequent deposit- of the money in question does not create ground for acquittal. Admittedly the convict-petitioner misappropriated the money he collected from the Rajshahi City Corporation shops and on the proof of the charges he was convicted and sentenced to various term. But subsequently he deposited the money in question. The High Court Division did not interfere with the sentence even though the amount of money misappropriated was deposited. The apex court held the High Court Division was perfectly justified in dismissing the appeal. Sirajul Islam (Md.) Vs. The State 13 MLR (2008) (AD) 118. Penal Code, 1860 Section 409- Ingredients constituting the offence must be present. Prevention of Corruption Act, 1947 Section 5(2)- Irregularities committed by public servants in course of discharge of their duties do not constitute offence of criminal misconduct. Code of Criminal Procedure, 1898 Section 417- Unless the order of acquittal suffers from non- consideration of material evidence on record or perversity no interference is warranted. Section 234(1) and 222(1) – Charge framed in violation of the mandatory provision of law- defect is not curable under section 537 Cr.P.C. In order to constitute offence of misappropriation under section 409 of the Penal Code and criminal misconduct under section 5(2) of the Act II of 1947 there must be entrustment of the property and misappropriation thereof. When the fundamental characteristics of the offence complained of are not present, no offence is committed. Fariduddin Ahmed (Md.) Vs. Ataharuddin and another 13 MLR (2008) (HC) 786. Penal Code, 1860 Section 409 – No offence is constituted unless the ingredients are found present. Where there are evidence on record that the shortage of wheat in the godown concerned could be caused by leakage of rain water, attack of insects, rates, etc. the convict-appellant cannot be held liable for the shortage and convicted and sentenced for the said shortage of wheat which in the facts and circumstances does not constitute offence of criminal misappropriation punishable under section 409 of the Penal Code. The learned judge of the High Court Division therefore set-aside the conviction and sentence as being one not established and proved by convincing and reliable evidence beyond shadow of all reasonable doubt. Zahiduzzaman (Md.) Vs. The State 11 MLR (2006) (HC) 144. Penal Code, 1860 Section 420 and 406 – Failure to execute and register sale deed pursuant to an agreement to sell property constitutes civil liability. Failure to execute sale deed pursuant to an agreement to sell land constitutes civil liability for which remedy lies in the civil court. Such allegation does not constitute offence punishable under section 420 and 406 of the Penal Code. The learned judges of the High Court Division held the instant proceedings abuse of the process of the court and as such quashed the same. Shafiullah Chowdhury and others Vs. The State 14 MLR (2009) (HC) 490. Penal Code, 1860 Section 420 – Money obtained by inducement and practice of fraud constitutes the offence of cheating. Enhancement of sentence without issue of rule is illegal. Accused appellant took money from the complainant by inducement on the assurance of sending him to America and subsequently he did not send him to America and misappropriated the money and refused to return the money. Such an act on the part of the accused appellant constituted offence of cheating punishable under section 420 of the Penal Code. The appellate court enhanced the sentence without issuing any rule which the Appellate Division held as illegal and set-aside the enhanced portion of sentence and upheld the conviction and sentence awarded by the trial court. Mokbul Hossain Howlader Vs. The State 13 MLR (2008) (AD) 181. Penal Code, 1860 Section 420 – To constitute an offence under this section the necessary ingredients must be established Dispute being of civil nature the remedy lies in the civil court. In order to secure conviction the charge must be proved by reliable evidence beyond all reasonable doubt. Unless the constituent ingredients are fully established the allegations do not attract section 420 of the Penal Code. Alhaj Abul Kashem Vs. The State 11 MLR (2006) (HC) 73. PENAL CODE, 1860 (XLV OF 1860) Section—1 It lays down that the Penal Code extends only to offences committed in Bangladesh and not to offences committed outside Bangladesh. Abdul Haque Vs. The State, 14BLD(HCD)204 Section—21, Clause 12 Principal of a private College is not a public servant Clause 12 of section 21 of the Penal Code provides that every person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of public duty is a public servant. Public duty is one which is created and conferred by law by which an individual is vested with some portion of the sovereign function of the Government to be exercised by him for the performance of the duty for the term and tenure prescribed by law. There is no such law in the instant case and as such the petitioner cannot be said to perform public duty and called a public servant. Md Matiur Rahman Vs The State, 19BLD(HCD)607 Ref: 30DLR(SC)127; PLD1964 Dhaka 330; A1R1957(SC)13 and A1R1918 Lahore 1 52—distinguishable Section—34 Common Intention This section-does not create any distinct offence. It is intended to meet a case where the members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. It means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them had done it individually ‘Common intention’ within the meaning of this section pre-supposes a prior concert. There must be a prior meeting of the minds leading to a pre-arranged plan to commit an offence. The common intention to commit the offence invites the application of section 34 of the Penal Code. In offences involving physical violence, the presence of the accused at the scene of the occurrence renders him liable on the principle of joint liability but where the offence consists of diverse acts and it may be committed at different times, the presence of the accused at the scene of the occurrence is not necessary. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53 Ref: 44DLR 83; A.I.R.l957(SC)381; 16 DLR(SC) 94; 16 DLR (Dhaka) 189; 29DLR (SC)271; A.I.R. 1978 (SC) 1248; A.I. R. 1939 (Cal) 65; A.I.R. 1929 (Bombay) 327; PLD 1957 (West Pakistan) Lahore, 956; A.LR. 1946 (Sind) 43; 12DLR (SC) 217; 27 DLR (AD) 29; 44 DLR (AD) 10; A.I.R. 1952 (SC) 474; A.1.R. 1976 (SC) 2027—Cited Section—34 Under section 34 of the Penal Code the essence of joint liability is to be found in the existence of a common intention animating the accused in the doing of a criminal act in furtherance of such intention. Before application of this section to a case, it must be shown: (a) a criminal act was done by several persons, (b) all the accused intended the commission of the offence and (c) the criminal act was done in furtherance of the common intention of all. Abul Kalam Azad Vs. The State, 14BLD (HCD) 401 Sections—34 and 149 Sections 34 and 149 of the Penal Code are two distinct and separate offences with different ingredients. Section 34 of the Penal Code involves a direct overt act on the part of the accused sharing a ‘common intention’ with others for the commission of an offence while section 149 of the Penal Code is essentially a vicarious liability for being a member of an unlawful assembly with the ‘common object’ of committing the offences. These two offences are of different nature. Abu Talukder Vs The State, 19BLD (HCD) 225 Sections—34 and 149 Common intention is an intention to commit the crime actually committed and each accused person can be convicted if he shared the common intention. The common intention contemplated by this section is anterior to the commission of the crime and it does not refer to the time when the offence is actually committed. A person cannot be found guilty under section 148 of the Penal Code unless he carried with him a dangerous weapon. A general statement that the accused persons were armed with dangerous weapons like dhal, katra, lathi and sorki is not sufficient to warrant a conviction under this section. Nurul Haque Matbar and others Vs. The State, 14BLD(HCD)178 Sections—34 and 149 Section 34 applies in a case where a criminal act is done by two or more persons in furtherance of the common intention of all while section 149 applies in the case of a member of an unlawful assembly when a criminal act is committed by any member of the unlawful assembly in prosecution of the common object of that assembly. Ataur Rahman and others Vs. The State, 14BLD(HCD) 391 Ref: 37 DLR 157—Cited Sections—99 and 100 Right of private defence of person even extends to causing of death when there is a reasonable apprehension that the intended assault by the aggressor would cause death or grievous hurt. But no right of private defence of person is available against an unarmed man. Dalim and another Vs. The State, 15 BLD (HCD) 133 Section—100 Right of private defence—When it extends to causing death? When the accused had scuffles with the deceased sometime before the occurrence and the fear of retaliation from the deceased party overpowers the mind of the accused, it is not possible for him, whose mental excitement can be better imagined than described, to weigh the position in golden scales. In such a situation when he is faced with assaults from his rival party it is not unnatural that he would strike a decisive blow to defend himself and to free himself from the clutches of his adversaries. In the instant case, accused Ruhul Amin gave only one knife blow to deceased Moktar Ali and then ran away. The attending circumstances indicate that he gave the knife blow only to free himself from the grip of deceased Moktar Ali and ran away for safety. This conduct of the accused satisfies the legal requirement of the right of private defence. The accused can not be said to have exceeded the right of self-defence. Ruhul Amin Mondal Vs. The State, 16BLD(HCD) 91 Section—109 Abetment Abatement is an offence under the Penal Code and a person may be charged for abetting an offence punishable under a special law even though the word ‘abetment may not be mentioned as an offence under the Special Act. Hussain Mohammad Ershad, former President Vs. The State, 14BLD(AD)178 Ref: 44 DLR (AD) 215; 33DLR 379; 17 DLR (SC) 261—Cited Section—120B Criminal Conspiracy Assembly at Bangabhaban on the occasion of oath taking ceremony took place after the occurrence of the previous night and the presence of the petitioner at Bangabhaban on the following day cannot by itself be a sufficient ground for even an inference for a criminal conspiracy. Her jubilation might be her husband but for that it cannot be said that she was in the conspiracy the result of moral support in the activities of her husband but for that it cannot be said that she was in the conspiracy. Mrs. Jobaida Rashid Vs The State, 17BLD(HCD)352 Ref: ‘Principles and Digest of the Law of Evidence’—By M. Monir; Queen Vs. Blake, 1844 6QB 126; 17 BLD (1997) 11; 17 BLD (AD)( 1997)54; 17BLD(AD)( 1997)163:2 BLC (AD) (1997) 75—Cited Sections—141, fifth clause and 143 If an assembly of five or more persons takes a decision to observe Hartal by themselves and their associates, then the decision does not come under the mischief of fifth clause of section 141 of the Penal Code. This decision does not contemplate holding of any procession or picket or any activity or activities to implement the decision. But if an assembly of five or more persons takes the decision to observe hartal to be participated by the people at large so that their common object is to compel others obviously by show of criminal force to do what they are not legally bound to do, then the said assembly must be an unlawful assembly according to fifth clause of section 141 of the Penal Code and the members of that unlawful assembly are liable to be punished under section 143 of the Penal Code. Consequently the processions or other activities in support of or to force such hartal shall be unlawful assemblies. Similarly every assembly of five persons or more to protest or to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognizable offences according to their behaviour under the relevant sections contained in Chapter VIII of the Penal Code. The State Vs. Mr Md Zillur Rahman and ors., 19 BLD (HCD) 303 Section—149 For applying section 149 of the Penal Code against an accused, three conditions must be fulfilled: (a) the accused must have been a member of the unlawful assembly at the time the offence was committed; (b) the offence must have been committed in prosecution of the common object, or (c) the offence must be such as the members of the assembly knew likely to be committed in prosecution of that object. Before applying section 149, the Court must have indubitable evidence that the members of the unlawful assembly constituted the statutory number of five, though some of them might not have been named, or identified, or brought to trial. Rafiqul Islam Vs. The State, 13BLD (AD)11 7 Ref: A.I.R.1953 SC 364; 1969 SCMR 537; AIR 1960 SC(290); AIR 1963 SC 174; AIR 1974 Sc 1567; A1R1975 SC 1917 (1921 and 1922); AIR 1978 sc 1233—Cited Section—188 It was obligatory on the part of the learned Magistrate to make a written complaint alleging the nature of the order made by him which was alleged to have disobeyed by accused and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 of the Penal Code. Abdul Ahad @ Md Abdul Ahad Vs The State, 20 BLD (HCD) 372 Section—201 To sustain a charge U/s 201 of the Penal Code it is essential to prove that an offence has been committed and that the accused knew or had reason to believe that an offence has been committed and with the requisite knowledge and intent to screen the offenders from legal punishment causes the evidence thereof to disappear or gives false information in respect of such offence, knowing or having reason to believe the same to be false. Khandkar Md. Moniruzzaman Vs.The State, 14BLD(HCD)308 Ref: 35 DLR (AD) 127; 18 DLR(SC)289; 15 DLR (SC) 150; AIR 1952 (SC) 354; 34 DLR238; 45DLR386; 30DLR58; 1984 B.C.R. 231; P.L.D. 1978 Lahore 1285—Cited Section—295A Deliberate and malicious acts, either spoken or written, or by visible representation intended to outrage religious feelings of any class of citizens constitute an offence under section 295A of the Penal Code. Dr. Homeo Baba Jahangir Beiman –al-Shuresari Vs. The State, 16BLD(HCD) 140 Ref: 40 DLR 359, 1993 B.L.D. 45; 7 DLR (WP) 17 (F.B); 8 DLR (FC) 110; S.C.C. Vol.IV, 213—Cited Section—295A Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs Section 295A of the Code on its language is applicable to those insults to religious beliefs which in addition to being deliberate and malicious are intended to outrage the religious feelings of the followers of that religion. After going through the publication very carefully and meticulously as to its entirity the High Court Division held that the same has not been written or published with any intention to hit the religious feeling or sentiments of the Muslims, rather, it was written against the narrow interpretation or distorted meaning given or spread out in our country, specially, by less educated and half educated fanatic religious Mollas and Islamic Fotowabaj. Reading of the entire caption and publication establishes that its inner or real meaning is not at all intended to hit the feeling of any Muslim or to distort the meaning of the said Sura of the Holy Quaran. Shamsuddin Ahmed and others Vs The State and another, 20 BLD (HCD) 268 Ref: “Jesus In Heaven on earth” and Working Muslim Mission and Literary Trust, Lahore, and of Civil and Military Gazette, Limited Vs. The Crown, 7DLR(W.P.C. Lahore) 17—relied Sections—299 and 300 Mere killing of a person or mere causing of a person’s death is not murder or a culpable homicide but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in section 299 as “culpable homicide” and four classes of cases have been described in section 300 as “murder”. The essential difference between mere “culpable homicide” and “murder” is the degree of probability of causing death. When death is probable, it is culpable homicide but when death is most probable, it is murder. The State Vs. Ashraf Ali and others, 14BLD (AD)127 Sections—300 and 304 Part—I When it is clear from the evidence that the free fight between the parties took place following an altercation it stands out that death of the victim was caused without any premeditation in a sudden fight in the heat of passion and without the offenders having taken undue advantage or acted in a cruel or unusual manner. This attracts Exception 4 of section 300 of the Penal Code and brings the case U/s 304 part 1. Abul Kalam Azad Vs. The State, 14BLD (HCD) 401 Ref: PLD1950 (Lahore)90; 14BLD (1994) 33; 40DLR443—Cited. Section—302 In a case where two persons have been murdered at dead of night, it is but natural to inform the police first about the occurrence. Non-mentioning of any name in the F.I.R. rings a truth in the F.I.R. Shahjahan Sardar and others Vs. The State 13BLD(AD)58 Section—302 In case where allegation had been made that a husband had murdered his wife, whether the husband had a duty to explain how and by whom she was murdered—the Public Prosecutor, whether is supposed to know the law and has a responsibility to work with devotion. In case where the allegations had been that a husband had murdered his wife and then absconded, the husband in such a situation had a duty to explain how his wife was murdered and by whom she was murdered and in case of non-explanation by the husband or his silence in the matter or he having absconded immediately after the murder, would be considered to be a good ground for a finding that the husband is guilty of murder of his wife if, however, there is no suggestion or circumstances to show to the contrary that other inmates of the house also used to beat her and killing her in the process. (ii) The Public Prosecutor is supposed to know the law and has a responsibility to work with devotion keeping in mind that he is representing not a party but the people in the administration of criminal justice. The State Vs. Nurul Huq 13BLD (HCD)99 Ref: 172 I.C.374; 39C.L.J 123; AIR 1977 (SC)1116; 126 I.C.689; 62 I.C. 545; P.L.D. 1964 (SC)813; 31DLR 312; 16 D.L.R (Dacca) 598; A.I.R 1973(SC)2474—Cited Section—302 Circumstantial evidence—Chain of circumstances wanting—presumption that deceased was last found in the company of accused—whether the accused is the killer of the deceased. The circumstantial evidence found against the accused is incapable of explanation on any reasonable theory except that of the guilt of the accused his persons. Accused presumed to be innocent of the charge till guilt is established by legal evidence. Principle to be followed in criminal case based on circumstantial evidence. It is the fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that the accused and accused only was the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused. Last seen theory—in the absence of any eye-witness to the murder and in the absence of any positive evidence that appellant Malai was found, following deceased Siddique Ali with sharp cutting weapons in hand and in the absence of any overt act on the part of the deceased it cannot be said with reasonable certainty that appellant Malai was responsible for the murder of deceased Siddique Ali Litigation—litigation existing between the accused and some of the witnesses is not enough to bear grudge by the accused so as to commit the offence of murder, rather such litigation sometime can be taken as a cause for false implication. Malai Miah Vs. The State (1993) 13BLD (HCD) 277 Section—302 When admittedly a wife sleeps at night with the husband in a room or hut not approachable by others, whether the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record? When admittedly a wife sleeps at night with the husband in a room or hut which is not approachable by others and there is no probable circumstance explaining the cause of death of the wife and she is found to have been killed by in a brutal manner by strangulation, the husband is rightly convicted under section 302 of the Penal Code on the basis of indubitable evidence on record against him. Abdul Hamid @ Sofaruddin Vs. The State, 13BLD(HCD)563 Ref: 38DLR235; 40 DLR (AD) 139—Cited Section—302 Motive When there is sufficient direct evidence to prove an offence, motive is immaterial and has no importance. While trying a case under section 302 of the Penal Code or hearing an appeal involving section 302, the Court must not consider first the motive of the murder, because motive is a matter of speculation and it rests in the mind and special knowledge of the accused persons. Motive is not a necessary ingredient of an offence under section 302 of the Penal Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration, specially when the case is based on circumstantial evidence. [Per Mustafa Kamal, J] The State Vs Giasuddin and others, 18 BLD(AD)254 Section—302 Plea of alibi In a wife killing case it is always presumed that the husband was with the deceased-wife at the time of occurrence, unless any alibi is set up by the defence. In that case the burden of proving such plea rests on the husband in order to absolve him of any criminal liability. Abdus Salam Vs The State, 19BLD (HCD)98 Section—302 Since the sentence prescribed under section 302 of the Penal Code is death or imprisonment for life, the Court before recording a conviction must be satisfied beyond reasonable doubts about the guilt of the accused persons on careful scrutiny of the evidence on record. A conviction even on grave suspicion and high probability is not tenable in law. Md. Jiaur Rahman Vs. The State, 15BLD (HCD)459 Section—302 Sentence Sentence is a complex matter which needs special considerations in the context of proved facts. In the instant case the broad facts that stare at the face are that there were hot altercations and exchange of hot words between the parties immediately preceding the occurrence and there was grappling by Salam and 2 others on one side and victim Jalal on the other and in the course of such quarrel and on the hit of passion condemned prisoner Abdul Aziz Mina inflected dagger blows on the victim. Under such circumstances, it is to be found that the condemned prisoner had no premeditation for killing victim Jalal and he acted on the heat of passion. The sentence of death is therefore commuted to a sentence of imprisonment for life. The State Vs Abdul Aziz Mina, 16BLD(HCD)183 Sections—302/109 In view of the fact that the condemned prisoner did not inflict any injury on victim Hazera, although he was a silent spectator to the cruel and gruesome murder of his wife by his companions, who were acquitted for want of legal evidence, it is reasonable to hold that he could not be convicted under section 302 of the Penal Code but should be found guilty for abetment under sections 302/109 of the Penal Code. Abdul Awal Vs. The State, 14BLD(AD)224 Sections—302134 Evidence Act, 1872(1 of 1872) Section—3 There is complete chain of circumstances that the appellants assaulted deceased victim Biswajit severely and dealt fatal blow causing his death when appellant Guizar participated in the occurrence most actively and he was found by PW4 for the last time with the deceased victim when Gulzar was chasing by the eastern side of the khal and the circumstances of the case taken cumulatively are forming a claim so complete that there is no escaped from the conclusion that the murder of victim Biswajit was committed by the appellant Gulzar and his associates and none else. Guizar Biswas and others Vs The State,20BLD(HCD)550 Sections—302/34 The wife of the deceased deposed in Court that she had recognised the assailants of her husband and accused Akkel Ali gave channy blow, Delwar gave dao blow, accused Omar Ali gave Lathi blow and accused Quasem gave rifle blow on her husband who succumbed to the injuries on 15.6.1989 in the hospital which is corroborated by PWs. 1,2, 3, 4, 6 and 8 and the dying declaration and there is nothing to disbelieve the credibility of their evidences and hence the prosecution proved the case beyond all reasonable doubt and therefore the conviction and sentences under section 302/34 of the Penal Code against the condemned convict is sustainable. The State Vs Akkel Ali and ors, 20BLD (HCD)484 Sections—302/34 and 201/34 Non-recovery of the deadbody Even in a case of non-recovery of the deadbody of a victim a conviction can be secured for an offence of murder under section 302 of the Penal Code if there be legal and sufficient evidence on record to prove the commission of murder by the accused. In the face of clear evidence of eye-witnesses proving murder of the victim by the accused by inflicting assaults on his person and the subsequent removal of the deadbody by the accused persons for the purpose of causing disappearance thereof, Conviction of the appellant under sections 302/34 of the Penal Code is justified. There is no warrant of law altering the charge from section 302 to section 364 of the Penal Code merely because the dead body was not recovered. Shaha and others Vs The State 17BLD (AD)241 Sections—302 and 302/149 A conviction under section 302 of the Penal Code and a conviction under sections 302/149 of the Penal Code are different kinds of conviction as section 302 of the Penal Code involves direct and personal liability of the accused whereas sections 302/149 of the Penal Code involve a vicarious liability. The trial Court convicted the accused-appellant under sections 302/149 of the Penal Code and as such the High Court Division was wrong in affirming the order of conviction and sentence under section 302 of the Penal Code. Altaf Hossain Vs The State, 18BLD (AD)231 Sections—302, 304 and 326 The line of demarcation between culpable homicide and grievous hurt is rather thin. In the former case injury must be such as is likely to cause death whereas in the latter case that is likely to endanger life. Offence of culpable homicide pre-supposes an intention or knowledge of likelihood of causing death. In the absence of such intention or knowledge the offence committed may be a grievous hurt notwithstanding death being caused. Humayun Matubbar Vs The State, 18 BLD (HCD) 492 Section—304 Part II On scrutiny and careful analysis of the evidence of the P.Ws it appears that accused Shamsul Huq did not foresee that throwing of brick towards victim Kastura Bibi would cause death to her. He had no intention to cause death or to cause such bodily injury as was likely to cause death. Victim sustained violent blow on the abdominal wall by the brick thrown towards her chest and got senseless but death occurred when accused Abdul Hoque (since deceased) pressed her on the neck resulting in her spontaneous death. Death would not have occurred if accused Abdul Hoque would not have played the part of pressing the victim on her neck. Accused Shamsul Huq had no premeditated intention to kill the victim and the intention to kill is lacking in the instant case. Although, he had no intention to kill the victim, it must be held that he had the knowledge that such throwing of brick was likely to cause her death and the act done by him was both rash and indiscreet and as such accused Shamsul Huq is liable for the commission of an offence punishable under section 304 Part II of the Penal Code. Abdul Jabbar and another Vs. The State, 18BLD(HCD)109 Ref: 5BLD(AD)198; 6BLD(AD)318; 10 BLD (AD)210; 5BLD 129; 8BLD 129; 48DLR 446—Cited Sections—363 and 361 Custody of a victim girl, if the allegations are that of kidnapping of a minor girl out of the keeping of the lawful guardian. Kidnapping of a minor girl out of the keeping of the lawful guardian is an offence under Section 363 of the Penal Code. For the purpose of custody of the victim girl as may be prayed for in the criminal Court in a pending proceeding, the Court has to proceed on the basis that the female is a minor under sixteen years of age as laid down in section 361 of the Penal Code. For proving the offence of kidnapping the minority of the victim will have to be established at the trial. Md. Wahed Ali Dewan Vs. The State and another, 14BLD(AD)32 Section—376 The offence committed by accused appellant finds corroboration from the medical report, namely the report of P.W. 1 who found marks of violence on the person of the victim and opined that this is a case of rape. The evidence of the witnesses has clearly established that accused appellant committed the crime of rape on victim Kazal Rekha. The learned Judge has rightly found the accused guilty of the offence under section 376 of the Penal Code. Tofazzal Hossain Khan Vs The State, 17 BLD(HCD)306 Section—376 Cruelty To Woman (Determent Punishment) Ordinance, 1983 (LX of 1983) Section—4(b)(c) The High Court Diyision on consideration of evidence of PWs rightly found that accused-petitioner Bazlu raped victim Mahinur Begum and that it was Bazlu who wanted to marry the victim girl Mahinur Begum and as such the finding of conviction and sentence of the High Court Division are based on proper appreciation of evidence on record. Bazlu Talukder Vs The State, 20 BLD (AD) 227 Section—379 When growing of the case crops by the complainant and the cutting and dishonestly and taking away of the same by the accused are proved, the accused is guilty of theft under section 379 of the Penal Code. In such circumstances, no plea of bonafide claim of right to the case land can save the accused from the criminal liability. Md. Motaleb Sardar and others Vs. The State and another, 19BLD(HCD)407 Section—379 Theft and bonafide claim of right It is well-settled that a co-sharer in exclusive possession of a parcel of land is entitled to maintain his possession therein to the exclusion of his co-sharers until the ejmali property is partitioned by metes and bounds but before effecting such partition the co-sharers or co-owners out of possession have no right to disturb his possession, not to speak of cutting and taking away crops grown by him. In such a case the bonafide claim of right in the land cannot extend to cutting and taking away crops grown by a co-sharer in possession. Bonafide or contested claim of right is no defence against a charge under section 379 of the Penal Code for cutting and taking away crops grown by the co-sharer in possession. Nasiruddin Shah and others Vs Nazrul Islam and others, 18BLD (HCD) 634 Section—392 Punishment for robbery Section—394 Punishment for voluntarily causing hurt in committing robbery In view of the fact that the two appellants and some other unidentified persons illegally confined the informant shop-keeper and others in the shop and by curtailing their liberty forcibly looted away valuable goods from their possession but without causing hurt to anybody, the appellants committed the offence punishable under section 392 of the Penal Code not under section 394. Gohar Ali and another Vs. The State 16BLD (HCD) 398 Section—394 Non-examination of investigating officer does not always prejudice the accused Admittedly the appellants remained in abscondence during the whole trial and in such a situation the non-examination of the investigating officer cannot be said to have caused any prejudice to the appellants. Gohar Ali and another Vs. The State 16 BLD (HCD) 398 Section—395 Dacoity is usually committed at dead hours of the night and in that view of the matter the means of recognition is of vital importance. The Court is to scrutinise the evidence of witnesses with great care and caution in respect of recognition of the accused persons. Where the informant’s testimony remains uncorroborated and the identity of the accused is not established beyond reasonable doubts, it is unsafe to convict the accused persons. Kuti alias Bellal and others Vs. The State, 15BLD (HCD) 9 Section—395 In a case of dacoity committed in the darkness of night the question of recognition is of vital importance. When the only eye witness to the occurrence does not state in his evidence about the means of recognition of the alleged dacoits, the order of conviction cannot be sustained. Subal Chandra Das Vs. The State, 15 BLD (HCD) 121 Section—396 In absence of any evidence of dacoity by any of the witness and in absence of any recover of any article taken away during the dacoity from the possession of any of the accused person it can be safely said that the prosecution has hopelessly failed to prove the case of dacoity and therefore the charge under section 396 P.C. must fail on the ground of absence of evidence to prove any of the ingredient of section 391 of the Penal Code. The State Vs Md. Abdul Ali and others Vs The State, 20BLD(HCD)327 Section—405 Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted, whether will establish the fact of criminal misappropriation? 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 tickets after sale. Mere delay in payment of money entrusted to a person, when there was no particular obligation to pay at a certain date, does not amount to misappropriation. Mere inability to pay back a sum of money entrusted, the sale proceeds of a property entrusted will not establish the fact of criminal misappropriation, if mens rea is not established. The prosecution must also establish, apart m entrustment that the accused had dishonestly misappropriated the property entrusted. A.H.M. Siddique Vs. The State 13BLD (HCD)85 Ref: 9DLR(SC) 14; 3lCr.L.J.(1930)1198; A.I.R.( 1940)330;AIR(1976)(SC) 1966—Cited Sections—406 and 420 The question of offence of cheating, whether arises when there is nothing to show that any entrustment of property was made to the accused? The question of offence of the cheating does not arise (in the instant case) as there is nothing to show that the accused has dishonestly induced the complainant to sell the fish to him on credit. There is nothing to show that any entrustment of the fish was made to the accused for sale of fish on credit according to the direction of the person making the entrustment. Md. Islam Ali Mia alias Md.Islam Vs. Ama! Chandra Mondal and another, 13BLD (AD)28 Sections—406/420 There is no specific promise for payment by any specific date and as such the High Court Division did not find any existence of initial intention for deception on the part of the accused petitioner. What happened between them was in due course of normal and regular business transaction for which no criminal action lies. At best the informant may go for civil action against the accused petitioner. Mohiuddin Md Abdul Kader Vs The State and another, 20 BLD (HCD) 499 Ref: 18BLD(AD)289; 49DLR(AD)180—Not applicable Sections—406/420 The allegations made in the petition of complaint it clearly shows that the petitioner had initial intention to deceive the complainant 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. Abu Baker Siddique Vs. The State & anr, 18BLD (AD)289 Sections—406/420 Dishonouring of the cheque itself does not constitute the offence of cheating. As regards the argument that the accused- petitioner issued a cheque knowing fully well that he had no money in the account and that conduct amongst to cheating we are of the view that dishonouring of the cheque itself does not constitute the offence of cheating. Md Motaleb Hossain Vs The State and another, 20BLD(HCD)573 Ref: Md. Asaduzzaman Vs. Salamatullah, 1 9BLD( 1999) (HCD)46 1—relied. Section—406/420 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 question between the parties is clearly of a civil nature. Dewan Obaidur Rahman Vs. The State and anr, 19BLD (AD)128 Ref: 45DLR (AD) 27—relied upon Section—409 Awarding sentence of fine along with sentence of imprisonment for life, whether can be said to be illegal. Awarding sentence of fine alongwith imprisonment for life cannot is not illegal in view of the said provisions of section 409 of the Penal Code. A.M.A. Wazedul Islam Vs. The State 13BLD (HCD)296 Section—409 The word “banker” used is section 409 of the Penal Code, whether has been used in the technical sense of the Banking Companies Act. Held: The word “Banker”occurring in section 409 of the Penal Code has not been used in the technical sense of the Banking Companies Act but it signifies any person who discharges any of the functions of the customary business of banking. The word also includes a firm or company that carries on such business. Mustafizur Rahman Vs. The State and others, 13BLD(HCD)287 Ref: 1960 Cr. L.J. 188; 44 DLR(AD) 192; 23DLR(SC)4 1—Cited Section—409 Mere delay in payment entrusted to a person, whether misappropriation? Mere delay in payment of money entrusted to a person, when there was no particular obligaton to pay at a certain date, does not amount to misappropriation. A.H.M. Siddique Vs. The State, 13BLD (HCD)85 Section—409 In section 409 of the Penal Code there is no provision for confiscation of property. Yet the Appellate Division refused to consider the prayer of the petitioner at this stage as this point was not specifically raised before the High Court Division. Bibhuti Bushan Talukder Vs The State, 17BLD(AD) 168 Section—409 Mere retention of money by the accused for some time without actual use for which it was meant or mere delay in disbursement of money due from him, if properly explained, does not constitute an offence under section 409 of the Penal Code. A.K.M. Hafizuddin Vs. The State, 15 BLD(HCD)234 Section—409 The ingredients of section 409 of the Code are misappropriation to commit criminal breach of trust in respect of property over which he had dominion as public servant. The appellant had no criminal intention to commit such criminal breach of trust in respect of the property which was held within his dominion, rather it shows his bonafide intention to help one of the customers of the Bank in tiding over his financial difficulties and as such the appellant is entitled to acquittal as of right. A.K.M. Mohiuddin Vs The State, 20 BLD(HCD)172 Section—411 Dishonestly retaining or receiving stolen property In order to sustain a conviction under section 411 of the Code the prosecution must prove affirmatively by reliable evidence that the accused had exclusive possession and effective control or domain over the stolen property or he received or retained the same knowing or having reason to believe it to be a stolen property. Md. Afsar Ali Pramanik Vs The State, 20BLD(HCD)356 Section—415 Simple dishonouring of a cheque itself is not cheating To constitute an offence of cheating as described in section 415 of the Penal Code, there must be a specific allegation that the accused had initial intention to deceive the complainant. It is also true that such intention can be gathered from the facts and circumstances of a because such intention normally is concealed in the mind and is not expressed. If there are allegations that goods were delivered on credit on specific promise of repayment within a specific date but the payment was not made within the specific time, it may be inferred that there was initial intention of deception. Md Asaduzzaman Vs Md Salamatullah, 19 BLD (HCD) 461 Ref: 46 DLR (AD) 180; 30 DLR 327; 27 DLR (AD) 175; 1954 Crl.L.J. (SC) 1806; 10 BLD (AD) 168: 42 DLR (AD) 240—Cited Section—415 It is a settled principle that the initial intention to deceive must be established to justify a conviction for cheating. The intention is to be gathered from the surrounding circumstances. Md. Arifur Rahman alias Bablu Vs. Shantosh Kumar Sadhu and another, 14 BLD(AD) 78 Section—420 To sustain a charge of cheating, the prosecution must prove the initial intention of the accused to deceive. Abdul Karim Vs Shamsul Alam and another, 14 BLD (HCD) 167 Ref: 42 DLR (AD) 31; 27 DLR (AD)175; 36 DLR (AD) 14—Cited Section—420 Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend money having no intention to repay, whether it will be an offence of cheating punishable under section 420 B.P.C. Intention of a person, whether can only be gathered from his conduct? Whenever a loan is taken by one from another on a representation to repay the same dishonestly inducing the person to lend the money, having no intention to repay the same, it will be an offence of cheating as defined under section 415 and to be punished under section 420 of the Penal Code. Intention of a person can only be gathered from his conduct at the time of the occurrence and the surrounding circumstances. Md. Shafiuddin Khan Vs. The State & another, 13BLD(HCD)362 Ref: 13 CWN, 728; 10 DLR 325, 26 DLR 146; 27 DLR (AD) 175; 7 BLD 164—Cited Sections—420 Dishonouring of the cheque itself cannot be considered as an ingredient of the offence of cheating unless there is evidence to show that after issuing it he has done something more to defraud the payee. Even such a cheque issued with the knowledge that he has not such amount in the Bank account at the moment it will not amount to cheating if he has intention to deposit the money before the cheque is presented for encashment. Mere dishonouring of the cheques itself is not an ingredient of cheating. Mohiuddin Md Abdul Kader Vs The State and another, 20 BLD (HCD) 499 19 BLD (HCD) 46 1—relied Sections—441/447 Criminal trespass It provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”. In the instant case the dominant intention of the appellant was to annoy the complainant who was in possession of the case land. The complainant might not be present at the time of the illegal entry but he came to the scene thereafter and opposed the appellant who, despite his protest, carried on the work of construction. So the ingredients of section 441/447 of the Penal Code have been well-established. Mohammad Ali Member Vs Abdul Fazul Mia Md. Mazedul Huq and another, 19BLD (AD) 260 Section—447 Criminal trespass In view of the fact that theft of the case crop by the accused by the cutting and taking away of the same out of the possession of the complainant and damaging some crops in the course of the same transaction necessarily involves their entry into the case land and the accused are punished for the said offences, a separate conviction under section 447 of the Penal Code is wholly unwarranted. Moreover, in the absence of any finding by the trial Court on the intention or the object of the illegal trespass of the accused, conviction of the accused under sections 447 or 448 of the Penal Code is not maintainable in law. Md. Motaleb Sardar and others Vs. The State and another, 19 BLD (HCD) 407 Section—471 For the offence under section 471 of the Penal Code an accused can be punished, as provided in section 465 of the Penal Code, upto 2 years rigorous imprisonment or with fine or with both. The imposition of 4 years rigorous imprisonment under section 471 of the Penal Code is not sustainable in law. Abul Hossain Mollah alias Abu Mollah Vs The State, 17 BLD (AD)170 Section—493 A mere promise of marriage made by the accused to a woman or to her guardian intending never to fulfil his promise does not warrant a conclusion that a false belief was caused in her mind that she was the lawfully married wife of the accused. Makhan alias Putu Vs. The State, 14 BLD (HCD)122 Ref: 34 DLR 366—Cited Section—499 Eighth Exception Complaint made by the petitioners in good faith to the Hon’ble Chief Justice regarding the conduct of the complainant judicial officer is not defamation as the same is covered by 8th exception of section 499 of the Penal Code. Md. Abdun Noor and others Vs The State and another, 18 BLD (HCD) 624 Section—499 Ninth Exception—Defamation Bringing anything which is unjust or improper to the notice of the public at large is certainly for the public good. In the instant case, since the alleged offending imputation was made at a press conference by a person who has not been made an accused in the case and the matter was earlier published in other newspapers and the present publication was made in good faith, the offending publication per see satisfies the requirement of Ninth Exception to section 499 of the Penal Code and as such further continuation of the impugned proceeding amounts tà an abuse of the process of the Court and the same is quashed. Syed Mohammad Afzal Hossain Vs. S.M. Selim Idris, 15 BLD (HCD) 362 Ref. 19 DLR (SC) 198—Cited Section—500 To constitute defamation, the offending words spoken must contain imputation concerning a person intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such a person. Explanation 4 of section 499 of Penal Code provides that no imputation harms a person’s reputation unless that imputation lowers the moral or intellectual character of that person in the estimation of others. A.K.M. Enamul Haque Vs. Md. Mizanur Rahman and others, 14 BLD (HCD) 201 Section—599/500 Imputations, if made by a lawyer iii the discharge of his or her professional duty on the character of any person in good faith, whether will constitute any offence of defamation—A lawyer while acting under the instructions of his or her client, whether is entitled to special protection? Imputation, if any, made by a lawyer, in the discharge of his or her professional duty, on the character of any person, in good faith and for protection of the interest of the person making it or of any other person or for the public good will not constitute any offence of defamation. A lawyer, while acting under the instructions of his or her client and proceeding professionally, has a qualified privilege; while acting as such, the lawyer does not, if not otherwise implicated, come within the ambit of defamation unless and until there is an express malice on his or her part; and mere knowledge in such cases cannot be equated with express malice or malice in fact. The privilege enjoyed by the lawyer is only a qualified privilege and he will not come within the bounds of the offence of defamation unless and until there is an “express malice” or malice in fact on his or her part. An Advocate is entitled to special protection, when is called in question in respect of defamatory statements made by him or her in course of his or her duties as an Advocate. The Court ought to presume that he or she acted in good faith upon instructions of the clients and ought to require the party to prove the express malice. Mrs. Sigma Huda @ Sigma Huda Vs.Ishfaque Samad. 13BLD(HCD)152. Ref: (1976) 78 Born. L.R.234; A.I.R.1927 Cal. 823; A.I.R. 1932 Bom. 49O—Cited. Section 21— Members of Union Parishad are “Public Servants” whom the Legislature has treated as a separate class of people’s representatives and provided additional disqualification for them. Above all, members of a Union Parishad are ‘public servants’ within the meaning of section 21 of the Penal Code. The term Public Servants’ denotes some executive control over them and they are subject to disciplinary rules which are applicable to regular government servants. In view of these differences in respect of functions and duties, the Legislature thought it proper and expedient to treat them as a separate class of people’s representatives and has provided for the addition4 disqualification in question. Sheikh Abdus Sabur Vs. Returning Off leer 41 DLR (AD) 30. Sections 25 and 463— Where there is an intention to deceive and by means of the deceit to obtain an advantage there is a fraud and if a document is fabricated with such intent, it is a forgery. Jahangir Hossain Vs State 40 DLR 545. Section 34— Amendment of section 34—isertion of the words “in furtherance of the common intention of all” after the word person’ and before the word “each” —its aim was to make the object of the section clear. Chand Mia Vs. State 42 DLR (AD) 3. Section 34— In order to make an accuse constructively liable with the help of 34 for an offence not actually committed by him, it is essential to prove that he had intention to commit the offence. Unless such intention is proved, he cannot be made liable under that section. Belal Ahmed Vs. State 40 DLR 154. Section 34— Mere standing of accused Belal at the door of Parvin will not constitute offence under section 34 read with section 324 Penal Code in causing voluntary hurt by dangerous weapon. Belal Ahmed Vs. State 40 DLR 154. Section 34— Principle of vicarious liability, applicability of—Test as to the applicability of that principle—Common intention implies a pre—arranged plan and it must be proved that a criminal act was done in concert pursuant to the pre—arranged plan. Kabul Vs. State 40 DLR 216. Section 34— Common intention—Distinction between same or similar intention and common intention. Common intention within the meaning of section 34 of the Penal Code pre—supposes prior concert; it also requires pre—arranged plan and care must be taken not to confuse same or similar intention with common intention, the partition which divides “their bounds” is often very thin; nevertheless the distinction is real and substantial and if overlooked will result in miscarriage of justice. Kabul Vs. State 40 DLR 216. Section 34— Mere proof of each of the participating culprits having same Intention to commit certain act is not sufficient to constitute common Intention. Kabul Vs. State 40 DLR 216. Section 34— Principle of joint liability—Existence of common intention animating the accuseds leading to the doing of a criminal act in furtherance of it. Kabul Vs. State 40 DLR 216. Section 34— Inference of common intention shall never be reached unless it is a necessary inference from the circumstances of the case. Kabul Vs. State 40 DLR 216. Section 34— Common intention may be proved by direct evidence. Kabul Vs. State 40 DLR 216. Section 34— Inference of common intention shall not be reached unless it, is a necessary inference deducible from the evidence or circumstances of the case. Kabul Vs. State 4O DLR 216. Section 34— Common intention—Nature of injuries caused by different accused—The fact that some of the accused had caused fatal injuries and others caused minor injuries is immaterial if the act was done in furtherance of their common intention. The nature of injuries has nothing to do as the two accused are found to have shared the intention of other accused whose acts resulted in the death of the victim. State Vs. Montu 44 DLR (AD) 287. Section 34— Common intention—Pre—plan not essential ingredient—It is true in this case there was no pre—plan of the accused to kill the victim—their common intention to kill developed on the spot when they all simultaneously fell upon the victim as soon as he appeared on the scene. State Vs. Montu 44 DLR (AD) 287. Section 34— Common Intention —Unless the Court Is told what the exact words were used by the accused person it cannot act on the inference supplied by the witnesses—There is no evidence on record that the appellant Nos. 2—4 had an intention to cause the death of Nandalal. Amar Kumar Thakur Vs. State 40 DLR (AD) 147. Section 34— 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. Section 34— Common intention—Each person may have same intention to kill yet there might not be a prior meeting of minds to form a pre—arranged plan—Individual liability as opposed to joint liability. Kabul Vs. State 40 DLR 216. Section 34— No evidence of a pre—concert or meeting of minds to cause the death of the deceased—Assault in furtherance of common intention is difficult to prove. Kabul Vs. State 40 DLR 216. Sections 34 & 37— Rule of joint responsibility for criminal act —In order to attract section 34 it is not necessary that any overt act must be done by the particular accused. The provision shall be applicable if it is established that the criminal act has been done by any one of the accused persons in furtherance of the intention of all. Mere distance from the scene of crime cannot exclude culpability. Criminal sharing, overt or covert, by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of section 34. State Vs. Abul Khair 44 DLR284. Sections 34 and 109— The conviction of appellant Nos. 2—4 upon the evidence on record for the offence of murder with the application of section 34 or 109 Penal Code is not sustainable in law. Amar Kumar Thakur Vs. State 40 DLR (AD) 147. Sections 34 & 149— Constructive criminality—Section 149, like section 34, does not create and punish any substantive offence. These sections may be added to the charge of any substantive offence. Without the charge for any substantive offence, no charge under either of them can be conceived of. Abdus Samad Vs. State 44 DLR (AD) 233. Sections 34 & 149— Common intention and common object—Section 34 provides that when a criminal act is done by several persons in furtherance of their common intention each of them is liable for that act in the same manner as if it was done by him alone. Section 149 postulates an unlawful assembly and commission of an offence by any of its members in prosecution of the common object of such an assembly. Abdus Samad Vs. State 44 DLR (AD) 233. Sections 34 & 149— Scope of the two sections—Both sections deal with combination of persons to become punishable as sharers in an offence. Basis of a case under section 34 is the element of participation, and that of one under section 149 is membership of an unlawful assembly. The scope of the latter is wider than that of the former. Abdus Samad Vs. State 44 DLR (AD) 233. Sections 34 & 149— these sections do not confer punishment for any substantive offence. They are intended to deal with liability for constructive criminality. Section 34 applies where criminal act is done by two or more persons in furtherance of the common intention of all, whereas section 149 applies in the case of a member involved in unlawful assembly for a common object. So there is difference between the two sections as there is a difference between object and intention. Ataur Rahman Vs. State 43 DLR 87. Section 94— Even order of the superior authority, in the absence of threat of instant death, was not sufficient to justify the irregular payment for which the accused was prosecuted. AMA Wajedul Islam Vs. State 45 DLR 243. Section 109— Abetment of offence—Mere presence of the accused near the place of occurrence does not constitute the offence of abetment. Intentional aiding and active complicity is the gist of the offence in the absence of which the charge of abetment must fail. Mostain Moliah Vs. State 44 DLR 295. Section 109— Common intention having been not proved against Belal, it is difficult to hold good the charge of abetment upon him. Belal Ahmed Vs. State 40 DLR 154. Section 109— Non-consideration of a vital element of law while convicting accused has caused serious prejudice resulting in failure of justice to the accused. Belal Ahmed Vs. State 40 DLR 154. Section 147— The Sessions Judge found the appellants guilty of charge under section 147 PC and granted interim bail pending filing of appeal. The learned Judge by the impugned order summarily rejected the appeal petition on the ground that the appellants did not surrender before moving their petition of appeal and they being “fugitive from Law cannot get its protection.” Leave was granted to consider whether the impugned order was a just and proper order. Saidur Rahman Vs. State 40 DLR (AD) 281. Sections 148 & 149— Error in recording conviction—the charge framed and findings of the Court show the accused to be guilty of rioting punishable under section 148. But the trial Court erroneously recorded conviction under section 149, although this section 149 does not independently punish any offence. The High Court Division attempted to correct it, but unnecessarily added section 149 to section 148. This is a mere irregularity which does not touch the merit of the case as the charge specifically said they were members of an unlawful assembly. The order of conviction needs be modified so as to record the conviction under section 148. Abdus Samad Vs. State 44 DLR (AD) 233. Sections 148, 302/149 and 302/34— Accused charged under section 149 Penal Code but convicted under section 302—On the question whether such conviction is sustainable in law, Court held: Conviction under sections 302/34 Penal Code is sustainable in law. Md. Hossain Vs. State 41 DLR 373. —Alteration of charge from section 302 to that of sections 302/34 Penal Code is permissible in the facts and circumstances of the case. Md. Hossain Vs. State 41 DLR 373. Sections 148 and 324— Members of unlawful assembly—Rioting committed in prosecution of their common object—Accused Tayeb Ali assaulted PW 1—Conviction of both the accuseds under section 148 PC and Tayeb MP conviction under section 324 BPC based on good evidence—But their conviction under sections 302/149 not sustainable as their —participation in assault upon deceased Bazlur Rabman doubtful. Tayeb Ali Vs. State 41 DLR (AD) 147. Section 149— Member of an unlawful assembly—Whether he can be convicted when the principal offender has not been convicted —Once the court finds that an offence has been committed by any member of an unlawful assembly in prosecution of its common object, then whether the principal offender has been convicted or not all other members may be constructively liable for conviction. Abdus Samad Vs. State 44 DLR (AD) 233. Section 149— Applicability of the provision under section 149—Even after acquittal of the five accused there could be an unlawful assembly if there was evidence that besides the accused on trial there were others even though not stated as such in the charge or in the FIR. Rafiqul Islam Vs. State 44 DLR (AD) 264. Section 149— Offence committed in prosecution of common object—Section 149 Penal Code by itself creates no offence; It carries the liability of each member of an unlawful assembly for the act done in prosecution of their common object. Tenu Miah and others Vs. State 43 DLR 633. Section 149— Constructive liability—T occurrence appears to have taken — sudden quarrel and in a fit of rage deadly appear to have suppressed material facts. In such a situation charge under section 149 is not maintainable. Mere presence of the accused at the scene of the occurrence of murder is not sufficient to charge him with1 constructive liability. State Vs. Giasuddin 45, DLR 267. Section 161— Illegal gratification—Trap case—Because of the tough requirement of proof beyond reasonable doubt the laying of trap is the only method for detecting crimes like bribery which are committed in covert manner. Such a method is not prohibited. For laying a trap the Investigating Officer cannot be said to be thereby ‘instigating commission: of the offence. Principles of accomplice evidence cannot be extended to the evidence of trap witness, because the latter cannot be termed as accomplice. As to corroboration of trap witnesses no hard and fast rule can be given. There may be cases where the Court will look for independent corroboration— equally there may be cases where the Cowl may accept evidence of trap witnesses. Shahabullah Vs. State 43 DLR (AD) 1. Section 161— There is no authority for the proposition that making demand for illegal gratification is an essential ingredient of the offence under section 161 Penal Code. In order to prove this offence it is the duty of the prosecution to prove that there was conscious acceptance of the bribery money by the accused. AKM Mukhlesur Rahrnan Vs. State 45 DLR 626. Section 161— When factum of recovery has not been proved by independent and disinterested witnesses, it would be unsafe to find the guilt of the accused under section 161 Penal Code. AKM Mukhlesur Rahman Vs. State 45 DLR 626. Section 161— The act for which the illegal gratification is to be paid or received was already over before the commission of the alleged offence and in such circumstances it will be most unsafe to hold a person guilty. AKM Mukhlesur RahmaA Vs. State 45 DLR 626. Section 175— Documents required to be filed on 27.4.1986 have been filed long after that date by which time cognizance of the alleged offence has been taken on 28.8.1986. Held—Prima facie offence has already been committed by the petitioner. Abdu Sattar Bhuiya. Vs. Deputy Commissioner Dhaka 42 DLR 151. Sections 193 and 228— 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 o be judicial proceeding within the meaning of s1ions 193 and 228 of the Penal Code—A Tribunal shall be deemed to be a Civil Coil for. Purposes of sections 480 and.482 CrPC. The proceeding before tribunal is of a civil nature and as such there appears to be no bar to effect a compromise between the parties in a proceeding before the Tribunal. Fees paid to a lawyer for professional services is not a loan—The complainant was not entitled to receive back from the appellant any single farthing—The amount of Tk. 10,000.00 received from the appellant is not as a refund of money paid but as a compromise sum. Tribunal’s manner of acceptance of the case on a matter in which amicable settlement was reached between the parties out of their free will and without prejudice to any one disapproved. Muhammad Raushan Ali Vs. Bangladesh Bar Council 42 DLR 201. Section 201— Accused’s statement the part of which is incriminating does not connect him with the act of killing. In the statement of accused Yasin Majhee which was recorded in Bengali it appears that he accompanied the murderers up to the house of Yasin Mridha where the dead body was brought. This part of the statement may be incriminating if at all in respect of the offence of concealment of the dead body, but it does not connect him with the act of killing. State Vs. Abdur Rashid Piada 40 DLR (AD) 106. Section 201— The statement of the accused Joynal to the Chairman is of the same nature and as such is not a confessional statement As to the extra—judicial confession orally made by accused Joynal to PW 2, Chairman, this is also of the same nature as the statement recorded by the Magistrate; he did not implicate himself in the murder, and as such it is not a confessional statement implicating himself and other accused In the murder. State Vs. Abdur Rashid 40 DLR (AD) 106. Section 201— Disappearance of evidence—there was no witness saying that the accused participated in concealment and burial of the dead body, nor the eye—witnesses disclosed that the accused assaulted the victim. In such circumstances mere pointing out the place where the dead body was concealed would not constitute the offence of causing disappearance of evidence. Gopal Rajgor Vs. State 42 DLR 446. Section 290— Offence under section 290 of the Penal Code being a non-cognizable one, the proceeding initiated on police report without the permission of the Magistrate as required under section 155(2) CrPC is illegal. Aroj Ali Sarder Vs. Stare 41 DLR 306. Sections 298, 300, 302 and 304— Ingredients of murder and culpable homicide stated to elaborate the point. It has been held in the decision reported in 1987 BLD (AD) 165 that “all murders are culpable homicide but all culpable homicides are not murder.” Excepting the General Exceptions attached to the definition of murder an act committed either with certain guilty intention or with certain guilty knowledge constitutes culpable homicide amounting to murder. If the criminal act is done with the intention for causing death then it is murder clear and simple. In all other cases of culpable homicide it is the degree of probability of death from certain injuries which determines whether the injuries constitute murder or culpable, homicide not amounting to murder and if death is the likely result of the injures it is culpable homicide not amounting t and; if death is the most likely result then it is murder. Momin Maitha Vs.State 41 DLR 37. Sections 299, 300 & 302— In the case of culpable homicide the intention or knowledge is not so positive or definite. The injury caused may or may not cause the death of the victim. To find that the offender is guilty of murder, it must be held that his case falls within any of the four clauses of section 300 otherwise he will be guilty of culpable homicide not amounting to murder. Facts of the case show that death was caused without premeditation. Bandez Ali Vs. State 40 DLR (AD) 200. Section 300, clauses 1, 2, and 3— The weapon used was a lethal one and the injury I grave in nature was caused on the vital part of the body. The act was done with the—intention of causing such bodily injury intended to be inflicted as was sufficient in the ordinary course of nature to cause death. It falls clearly within the 1st, 2nd & 3rd clauses of section 300 Penal Code. Md. Abdul Majid Vs. State40 DLR (AD) 83. Section 300 Exception 1, Sections 302 and 304 part I— the present case is—covered by the exceptions to the section: 300 of Penal Code. From the facts and circumstances of the case, we think that the criminal acts of the accuse4 respondents which resulted in the death of the victim constitute culpable homicide not amounting to murder punishable under section 3O4Part I of the Pena code. On a Consideration of the fact and circumstances of the case, it appears that the& case is covered by exception—1 to section 300 of the Penal Code and accordingly the conviction of the appellants is altered from section 302 to 304 Part I of the Penal Code and the sentence —of each of the appellants is reduced to RI for 10 years each thereunder. Momin Malitha Vs. State 41 DLR 37. Section 300, Exceptions 1 and 4— Appellant cannot be convicted and sentenced under section 302 as the alleged offence conies within the ambit of Exceptions I and 4, section 300 of the Penal Code. From the evidence on record, it transpires that there was quarrel and golmal over the fencing on the disputed land and also altercation took place On the day of occurrence between the parties over removal of the fencing which ultimately culminated into a ‘maramari causing thereby bleeding injury on the person of the appellant’s son Kalu on one hand and the death of victim Abdul Karim on the other. Besides, the injury on the person of the son of accused Momin Malitha could not be explained away by the prosecution It also appears that the accused had no undue advantage in the matter Be that as it may, on a careful consideration of the facts and circumstances of the case and the evidence on record and also the relevant provisions of law, we are of the view that the alleged offence committed by this appellant Momin Malitha comes within the ambit of the Exceptions I and 4 of section 300 of the Penal Code and as such this appellant cannot be convicted and sentenced under section 302 of the Penal Code. Momin Malitha Vs State 41 DLR 37. Section 300, Exceps 2 & 4— Murder— Right of private defence—In the case of right of private defence of property one accused of murder must prove that the property in question was his property. When upon evidence it is found that the primary object of the accused was to make a forcible attempt to snatch away the paddy of the informant party question of defending such right cannot arise. It was nowhere suggested that the informant party carried any weapon or made any kind of assault on the accused while, on the other hand, the accused were found to have been armed with lethal weapons. In this case there was certainly premeditation on the side of the accused without which he would not have come armed with lethal weapons. Dilip Vs. State 43 DLR 269 Sections 300, 299 & 304—Part I— Culpable homicide—The injuries, though caused intentionally, are of such a nature that these are “likely to cause death” and this does not constitute murder’—It constitutes culpable homicide not amounting to murder. State Vs. Montu 44 DLR (AD) 287. Section 302— Substitütion of sub-section (5) of section 367 CrPC by the Law Reforms ordinance—Effect of change on sentencing— Previously death sentence was the normalal 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 in the same way as in the case of lesser sentence of life term imprisonment. Abed Ali Vs. State 42 DLR (AD) 171. Section 302—Sentence— Commutation of death sentence—Delay of about two years or so in the disposal of the Death Reference Case and the Jail Appeal in the High Court division cannot by it if be a ground for awaiting lesser sentence. Abed Ali Vs. State 42 DLR AD 171. Section 302— Culpable conduct of the accused that he made no attempt to look for his wife since she was missing is explicit, which is confirmatory of his involvement in the murder of his wife. Normally an accused is under no obligation to account for the death —for which he is on trial, but this is bound to be different. Dipok Kumar Sarker Vs. State 40 DLR (AD) 139. Section 302— In the present case the offence followed a brief tenure of a rancorous married life between the appellant and the deceased. It was admitted by the prosecution that it was not a blissful union from the beginning. Circumstances would have been taken notice of while inflicting proper punishment prescribed under the law. Dipok Kumar Sarker Vs. State 40 DLR (AD) 139. Section 302— The question Is whether the materials on record warrant conviction of the appellant Momin Malitha under section 302 of the Penal Code. We have carefully examined the evidence on record from all aspects and we are of the opinion that the offence committed by this appellant does not come within the scope of section 302 of the Penal Code. Momin Maltiha Vs. State 41 DLR 37. Section 302— CommutatIon of sentence— extenuating circumstances for commutation —condemned prisoners are under peril of death sentence for almost 3 years suffering—agony and torments 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 338. Section 302— 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 section, 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. lmdad Ali Bepari 42 DLR 428. Sections 302/32— Motive is though a piece of evidence and may not be a sine qua non for bringing offence home to accused, yet it is relevant and on the question of intention .The existence of motive has a great significance in a criminal trial. State Vs. Mizanul Islam 40 DLR 58. Sections 302/132— The credit to be given to the statement of witness is a matter not regulated by rule of procedure. The credibility of a witness depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. State Vs. Mizanul Islam 40 DLR 58. Section 302/32—Evidence of a witness is to be looked at from a point of law of its credibility. Appreciation of oral evidence depending as it does on such variable inconsistent factor as human nature cannot be reduced to a set formula. State Vs. Mizanul Islam 40 DLR 58. Sections 3O2/34— Commnon intention—Whether the evidence of PW 1 and PW 11, two eye witnesses, shows that the appellant NOs 2—4 had shared common intention to cause the death of Nandalal along with the appellant No. 1—There was no proper evidence to make such an inference. Amar Kumar Thakur Vs. State 40 DLR(AD) 147. Sections 302/34— Evidence adduced by PW 1 was corroborated by PWs 3,17 and 18 who were eye—witnesses. Nurul Islam Vs. State 40 DLR 122. Section 302/34— Common intention to murder the deceased Kanchan having been established by the appellant’s participation in the offence, they were rightly convicted. Nurul Islam Vs. State 40 DLR 122. Sections 302/34— Sessions Judge did not take any step for proper arrangement of defending the condemned prisoners who were denied the substantive right of being defended through a lawyer at the cost of the State— Conviction not sustainable in law. State Vs. Jahar Ali 42 DLR 94. Sections 302/34— Conviction of co—accused who had not confessed— Circumstances show the accused Shahajahan Manik had intimacy with accused Rina and this put them to 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. Sections 302/34— The confession is sufficient to find accused Rina guilty of the charge under sections 302/34 Penal Code inasmuch as she participated in the murder starting from hatching of conspiracy for killing her husband in order to marry accused Manik to allowing the latter to bring in poison and mix it with the drinking, water of her husband’s jug and then to see the husband drinking that water, then after his death to hang the body and raising a feigned cry. Besides, the circumstances showed there was no scope for anyone to enter the room to kill her husband without her co-operation. Shahjahan Manik Vs. State 42 DLR 465. Sections 302/34— Inconsistent evidence of PWs 2 and 4—Omissions and contradictions in their depositions were not given consideration by the Courts below —Defence case appears to be more probable than that of the prosecution “as it fits in human, nature and conduct”. Appellants entitled to acquittal as a matter of right. Abul Kashem Vs. State 41 DLR (AD) 152. Sections 302/34 and 201— No hint having been given to her during her examination under section 342 of the Code of Criminal Procedure as to the disappearance of evidence of crime she was prejudiced in her defence, and her conviction under section 201 Penal Code is not sustainable. Abdul Khaleque Vs. State 41 DLR 349. Sections 302/34 & 302/ 109— Confession —Conviction on confession alone—Relying on his incriminating statements that he made conspiracy with co—appellant Abdul Khaleq to murder his step—mother and when from his statement it appears that he was very much present standing outside the hut at the time of the murder, appellant Hazrat Ali can be safely convicted for abetment of murder. Hazrat Ali & others Vs. State 44 DLR (AD) 51. Sections 302/109 and 148— Evidence on record does not justify the order of conviction under sections 302/109 and 148 of the Penal Code upheld by the High Cowl Division—The learned Judges did not at all consider the evidence relating to the alleged abduction of Sohrab, Mahtab and Mobarak for which the appellants were convicted also under sections 362/149 Penal Code. Jamal Vs. State 40 DLR (AD) 38. Sections 302/109— Conduct of the accused—No evidence to suggest the intention of the accused to kill the victim while taking him along with them—Facts, evidence and circumstances do not bring the case under sections 302/109 Penal Code. Soleman Vs. State 42 DLR 118. Sections 302/109— Abetment—To sustain a charge of abetment of an offence it is necessary that there must be some evidence of overt act or omission so as to suggest a pre—concert or common design to commit a particular offence So long as the design rests in intention short of overt act directed to the commission of the offence it is not indictable in law. Ali Ahmed Malaker Vs. State 43 DLR 401 Sections 302 and 304 Part 1— Culpable homicide not amounting to murder— From the circumstances of the case and the nature of injury that resulted in the death of victim after 11 days after the infliction of the injury, the appellant cannot be held guilty of murder. Conviction altered to section 304, Part I. Lal Miah alias Lalu Vs. State 41 DLR (AD) 1. Section 304— Culpable homicide not amounting to murder—In the absence of any conspiracy, pre—plan Or premeditation on the part of the accuseds while inflicting injury resulting in the death of the victim 4 days after the occurrence, the accuseds did not intend to cause his death but they caused culpable homicide not amounting to murder. Dalilur Rahman Vs. State 44 DLR 379. Sections 304/34— Joint action—Omission may also render an offender liable for punishment—If a man joins with another to assault a person, even though the original intention was merely to inflict relativel harmless injuries, but if he sees his. Companions in course of the action giving serious beating which is likely to cause his death, but he does not take any step to interfere and the victim dies, such omission may render him liable under section 304. Shaikh Baharul Islam Vs. State 43 DLR 336. Sections 304/34— since accused Abdul Bari merely in an innocent manner brought the victim in obedience to OC’s order; he is not involved in any criminal act. Shaikh Baharul Islam Vs. State 43 DLR 336. Section 304 Part I— Culpable homicide not amounting to murder— from the facts proved it is clear that the victim did not die immediately after assault by her husband. There is no evidence of ill—feeling between the two, rather it is in evidence that he enticed her away and then married her. In the circumstances the accused—husband is not guilty of murder but of culpable homicide not amounting to murder. Abdul Khaleque Vs. State 45 DLR 75. Section 304 Part I— The Immediate cause that triggered off serious violence and resulted in the loss of four lives though calls for the maximum punishment, being shrouded in mystery a lesser punishment may meet the ends of justice. State Vs. Giasuddin 45 DLR 267. Section 304 Part I— Culpable homicide—Intention to cause death—From the evidence there can be no manner of doubt that the assault was done with the intention of causing such bodily injury as was likely to cause death. The accused—husband was not content by striking his wife with a branch of a tree but was reckless enough to kick her in the tender part of her body which immediately caused bleeding. It was not a case of mere knowledge only (to constitute offence under section 304 Part II) that such act was likely to cause death but that the intention to cause such injury as is likely to cause death was very clear. It is true —there is no finding as to “intention” either in the impugned judgment or in the judgment of the trial Court. This is certainly not desirable because the law requires a clear finding as to “intention” before recording a conviction under Part I of section 304. Notwithstanding the absence of the requisite finding as to intention, the appellant—husband was rightly convicted. Jatin Chandra Sil Vs State 43 DLR (AD) 223. Section 304, Part II— Attack on the deceased by the appellant in an infuriated state—Imposition of 5 years’ imprisonment is a proper sentence. The criminal and not the crime must figure prominently in shaping the sentence. Reform of the individual in the society and other necessities to prevent recurrence are right factors. Heinousness of the crime is a relevant factor in the choice of sentence. Samosh Mia Vs. State 42 DLR 171. Sections 307/34— Suspicion is not substitute of evidence. A faint doubt means a doubt without any reasonable basis. No benefit of doubt is contemplated in law. Reversal of the appellate Court’s finding will not bring the case within the ambit of murder under section 302 PC. Trial Court arrived at the finding that these injuries constitute murder. It is the degree of probability of death from certain injuries which determines whether the injuries constitute murder or culpable homicide not amounting to murder. State Vs. Tayeb Ali and others 40 DLR (AD) 6. Section 315— Prosectition for cheating—Plea of civil liability—The sum and substance of the complainant’s case is that the accused realised a total sum of Tk 50,00000 from the complainant on a promise to secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused in support of his application under section 561A CrPC Was that the liability, if any, was of a civil nature for which no prosecution would lie. Since, according to the petition of complaint, The accused totally denied receipt of any sum from the complainant, the question of civil liability does not arise. Abdur Rahim Vs. Enamul Huq 43 DLR (AD) 173 Section 323— In a border line case between sections 323 and 325 of the Penal Code, the accused would be entitled to the benefit of doubt and be convicted under section 323 of the Penal Code and not under section 325. Amar Kumar Nag Vs. State 41 DLR 134. Section 323— Conviction of the appellant on the evidence of interested witness. Appellant No: 2 entitled to benefit of doubt. We, therefore, hold that the prosecution has failed to establish the charge under section 323 of the Penal Code against the appellant No. 2 beyond reasonable doubt and hence he is entitled to benefit of doubt and the impugned order of conviction and sentence under section 323 of the Penal Code against this appellant cannot be sustained in law and the same is liable to be set aside. Momin Malitha Vs. State 41 DLR 37. Sections 325 and 326 distinguished— From a reading of the judgment, in the instant case it appears that the learned court below after examining the testimony of the witnesses came to a finding that the prosecution had been able to prove beyond all reasonable doubts that the accused Amar Kumar Nag alias Ratu Nag caused grievous hurt to the complainant, and as the evidence does not show that it was caused by any instrument of shooting, stabbing or cutting or any instrument used as a weapon of offence, found that the accused could not be said to have caused grievous hurt by any instrument of stabbing, punishable under section 326 of the Penal Code but as he had caused grievous hurt he would be found guilty under section 325 of the Penal Code and hence liable to be convicted not under section 326 but under section 325 of the Penal Code. For a person to be convicted for causing grievous hurt, he must not only have caused the grievous hurt in fact but also intended or knew that his action would be likely to cause grievous hurt, as any other reasonable man would know. Amar Kumar Nag Vs. State 41 DLR 134. Sections 325 & 326— In case of provocation an accused is entitled to leniency in punishment and for the contribution of the complainant in the incident or the accident, a sentence of fine would meet the ends of justice. In the instant case, the entire incident was not only one—sided but in it the complainant had also contributed to a great extent by calling a man a thief in presence of others. In such a case of provocation an accused is entitled to leniency in punishment and for the contribution of the complainant in the incident or the accident, a sentence would meet the ends of justice (Refer PLD 1981 SC 127). Amar Kumar Nag Vs. State 41 DLR 134. Sections 326/34 or 149— Appellant Nos. 2—6 cannot be convicted under section 326 of the Penal Code without framing any charge under section 34 or 149 of the Penal Code and without leading any evidence as to their acting in concert or m pursuance of any common object. Ibrahim Mollah Vs. State 40 DLR (AD) 216. Sections 361 and 363— For the purpose of the custody of the girl age of majority laid down in the Majority Act, 1875 read with the Guardians and Wards Act, 1890 i.e. the age 01 18 years, is the determining factor to decide whether the girl is to be given to the custody of the guardian—Reference to the age of 16 years in case of a female minor in section 361 is for the commission of the offence of kidnapping punishable under section 363 of the Penal Code only. Medical report is based on superficial observation and too general in nature—The school—leaving certificate has been issued by the headmaster of the school and is positive as to the date of birth of the girl and also as to the source thereof. Principle of admission by non— traverse— Applicability of—The age of the kidnapper not having been challenged the principle of admission by non—traverse will apply. Krishna Pada Dutta Vs Bangladesh 42 DLR 297. Sections 361 & 366A— Determinatiofl 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 43 DLR 71. Sections 361, 366 & 366A— Age of victim in relation to offences under the Penal Code—The minor to be taken out of custody of the lawful guardian as under section 366 must be a minor under 16, and 18 years would be referrable only to section 366A when she would be taken away from place to place by inducement with intent that she may be seduced to illicit intercourse. Tapash Nandi Vs. State 45 DLR 26. Section 363— A father being a natural guardian of the minor child, according to some judicial authorities, cannot be held guilty of kidnapping, for his taking away the child from the custody of the mother without the consent of the mother. Kazi Mohammad Elias Vs. Ferdous Ara 41 DLR 516. Sections 364/302— Offences of murder and kidnapping are co—extensive and there can be no conviction for both the offences. If abduction is followed by murder no charge can be framed under section 364 of the Penal Code and the charge must be one under sections 302/109 or for murder pure and simple. Soleman Vs. State 42 DLR 118. Sections 364/302/109/201— If at the trial the story as given against the alleged offender is omitted from the one given in FIR it has always been viewed with great suspicion. Md. Ali Haider Vs. State 40 DLR 97. Sections 364/302/109/201— FIR enables the Court to see what was the prosecution story was at the initial stage and to check up the subsequent embellishment. Md. Ali Haider Vs. State 40 DLR 97. Sections 364/302/109/201— There is no rule of law that once a witness has been discredited on one point, no credit is to be given to another. If a natural witness is declared hostile, his evidence may be accepted if corroborated. The evidence of boatman PW2 cannot be discarded. Md. Ali Haider Vs. State 40 DLR 97. Section 366— Abduction or kidnapping of a girl below 16 years—Intention necessary to constitute the offence. Ananda Vs. State 41 DLR 533. Section 366A— Justice demands that the appellant be given an opportunity to cross—examine the witnesses as some of them were examined in the absence of the appellant. Admittedly, the case is pending before the Special Tribunal constituted under the aforesaid Special Powers Act as the alleged offence is triable under the Special Powers Act. It is an admitted fact that certain witnesses have been examined in the absence of the appellant when he was absconding. It is further admitted that the prosecution has not yet closed the case and same is fixed for further evidence next week. As the prosecution has not yet closed the case and as some of the witnesses have been examined in the absence of the appellant when he was produced before the Tribunal under arrest subsequently during the midst of trial the tribunal ought to have afforded an opportunity to the appellant to cross—examine the witnesses already examined. Justice demands that such an opportunity ought to have been given to the appellant. Jamil Siddique Vs. State 41 DLR Section 366A— For sustaining a charge of kidnapping a woman for unlawful purposes the alleged victim must be m between 16 and18. If she is above 16 but below 18 and if no force is used to go with the accused it will not be an offence under the Penal Code or the Ordinance for deterrent punishment. Monindra Kumar Malaker Vs. State 42 DLR 349. Sections 366/109 read with Cruelty to Women (Deterrent Punishment), Ordinance (60 of 1983) Sections 4(b) (c)/9 There is no overt act proved against accused Ananda in any conspiracy resulting in the abduction of the victim girl by Swapan—Prosecution failed to prove the charge of abetment against Ananda. Ananda Vs. State 41 DLR 533 Section 377— Sodomy—Definition of some sort of penetration to be proved to constitute the offence under the section. Nur Mohammad Vs. State 41 DLR 301. Section 378— There cannot be any theft in the eye of law unless the moveable property is moved for being taken out of the possession. Qari Habibullah Belali Vs. Capt. Anwarul Azim 40 DLR 295. Sections 378 and 403— In an offence of theft there must be removal of the property out of the possession of another with intention to take dishonestly—Appellant received Taka 9000/—in good faith from the Bank’s counter instead, of Tk. 1900/—to which he was entitled and he had no knowledge that he was being overpaid—The dishonesty became full blown when the cashier requested him to return the excess amount in the evening at the school but the appellant gave a denial of having received the excess amount at all—The facts of the case do not constitute an offence of theft but they constitute another offence, dishonest misappropriation under section 402 of the Penal Code. The appellant may have received the money in good faith but the decision to appropriate the excess money to his own use makes it culpable—The conclusion is inescapable that he is inside the net. Kawsarul Alan Vs. State 42 DLR (AD) 23. Section 379— Commission of theft is an individual act and there must be clear evidence in respect of each individual accused. For the same reason the court is also required to consider the evidence against all the accused separately and record its findings. Abdul Mannan Vs. State 44 DLR (AD) 60. Section 379— The disputed hut was in the jimma of the complainant. The petitioners forcibly removed the same and took it away in spite of the complainant’s protest. Such taking of property from the possession of the jimmadar constitutes offence under section 279 Penal Code. Idris Vs. State 43 DLR 245. Section 379— Where the subject matter of theft belongs to the citizen or any other organisation or institution theft ipso facto of such property does not become prejudicial to the economic and financial interest of the State. In the instant case as the motors in question belonged to the project for irrigation of land of different individuals there is no scope to hold that the theft of the motors was prejudicial to the financial and economic interest of the State. Anisuzzaman Vs. State 43 DLR 35. Section 379— The contention that there was bonafide dispute with regard to the plot on which the hut was situated has no substance in this case, the consideration in the present case is whether there was any bonafide claim with regard to the hut which was the subject matter of theft. Kazi Motiur Rahman Vs. Din Islam 43 DLR 128. Section 381 read with Code of Criminal Procedure [V of 18981 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 qu4e maintainable as the petitioner was fully aware of the nature of accusation against him and had the opportunity to meet the element 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 395— For the purpose of conviction under section 395 there is sufficient evidence against the appellants as they were variously identified as more than 1 PW. Ratan Kha Vs. State 40 DLR 186. Section 395— Non—examination of the investigating officer who apprehended the dacoits with ornaments casts serious doubt on the prosecution story in view of the evidence on record and attending circumstances. Abdul Gafur alias Batta Miah Vs. State 40 DLR 474. Sections 395 and 397— Charge under section 395 PC but conviction under section 397 PC. The accused appellant having been not placed on trial under section 397 PC his conviction under section 397 not sustainable in law. Abu Taleb Vs. State 41 DLR 239. Sections 395 and 397— Accused Ali Howladar’s conviction under section 395/397 Penal Code cannot be sustained in law as the officer who conducted TI Parade was not examined. Amir Hossain Vs. State 41 DLR 32. Sections 395 and 397— So far as accused Ali Howlader is concerned the learned Sessions Judge has relied upon the evidence of the identifying witnesses to convict him; and since for non examination of the officer who conducted the TI parade the evidence of the identifying witnesses in the Test Identification parade cannot be relied upon his conviction under sections 395/397 of the Penal Code cannot also be sustained in law. Amir Hossain Vs. State 41 DLR 32. Sections 395 and 397— The Special Tribunal constituted under the provisions of the Special Powers Act (XIV of 1974) has no jurisdiction to take cognizance of the non—scheduled offences under sections 395 and 397 Penal Code as they were ommitted from the schedule of the SP Act, 1974 by amending Ordinance X of 1977. Khalilur Rahman Vs. State 41 DLR 385. Sections 395 and 397, 325/34 and 304/34 — Lumping together of several distinct charges in one trial is not permissible. Joint trial of separate and distinct offences not in course of same transaction is not permissible. Lal Mia Vs. State 40 DLR 377. Sections 395 and 397, 325/34 and 304/34— Joint trial of separate and distinct offences not in course of same transaction is not permissible. Lal Mia Vs. State 40 DLR 377 Section 397— Dacoity with attempt to cause grievous hurt—the absence of any grievous hurt to any person or use of any deadly weapon, conviction for such an offence cannot be sustained. Kashem Molla Vs. 42 DLR 453. Section 405— Illustration is a key to understand and interpret the section. The illustrations given under the section do not include a transaction of loan arid violation of the condition of loan agreement. No authority was cited that an alleged violation of a loan agreement constitutes an offence of criminal breach of trust. Shamsul Alam Vs. AFR Hasan 40 DLR 46. Section 405— The word “trust” and “entrustment” interpreted. In a transaction of 1oaathe loan giver does not retain any control over the loan amount and it becomes the personal money of the loanee and as such he cannot be conceived of committing any breach of trust. If there is any violation of the terms of agreement under the contract, that will be “decided in the civil Court and no criminal action would lie. Shamsul Alam Vs. AFR Hasan 40 DLR 46. Section 405— Facts alleged constitute an offence of criminal breach of trust or any offence triable in criminal court. ShamsuI Alam Vs. AFR Hasan 40 DLR 46. Section 405— Charge under section 405— What the prosecution must prove to establish the said charge—Mere entrustment of or dominion over the property will not prove the charge but the prosecution must also prove its misappropriation by accused or its conversion to the use of the accused. Mohammad Musa Vs. Kabir Ahmed 41 DLR 4. Section 405— A Transaction of Loan of money under an agreement does— not operate as an entrustment occurring in section 405 Penal Code. Shamsul Alam Vs. AFR Hasan 40 DLR 46. Section 405— Violation of contract will hold good for an offence of criminal breach of trust if the condition as to entrustment within the meaning of section 405 is satisfied. Shamsul Alam Vs. AFR Hasan 40 DLR 46. Section 405— Interpretation of entrustment under section 405 PC—it connotes that accused holds the property in a fiduciary capacity, the property remaining in the possession or control of the accused as a bailee. Shamsul Alam Vs. AFR Hasan 40 DLR 46. Section 405— Under the concept of entrustment the person who transfers possession of the property to second party still remains the legal owner of the property and the person so put in possession only obtains a special interest by way of a claim for money advanced for the safe keeping of the thing. Shamsul Alam Vs. AFR Hasan 40 DLR 46. Sections 405 and 406— The only relevant question for consideration is whether the facts alleged disclose an offence of criminal breach of trust. Shamsul Alam Vs. AFR Hasan 40 DLR 46. Sections 405 and 409— Meaning of entrustment—Entrustment connotes that the accused held the property in fiduciary capacity—CI sheets of Tahsil Office which were blown off by storm were collected and kept in the Tahsil Office—whether the Tahsildar—in—charge was entrusted with CI sheets. Akmal Hossain Vs. State 40 DLR 483. Section 406— Money lent by the complainant to the accused—petitioner induced by representation to repay and there is absence of any entrustment. Allegations constitute no offence of criminal breach of trust and the charge thereof is quashed. Shafiuddin Khan Vs. State 45 DLR 102. Section 406— Paddy purchased by PW 1 was handed over to the appellant—Appellant refused to deliver the sale proceeds and denied the entire transaction—The case is one .of entrustment fully proved by the prosecution— No interference. Mohammad Musa Vs. Kabir Ahmed 41 DLR (AD) 151. Section 406— A criminal Court while awarding punishment under section 406 of the Penal Code has got no authority to pass an order directing the accused to pay the sale proceeds of a property over which he had dominion to the complainant. Mohammad Musa Vs. Kabir Ahmed 41 DLR 4. Section 406— Court below in passing the order of making repayment of sale proceeds acted ex mero motu and transgressed their jurisdiction. Mohammad Musa Vs. Kabir Ahmed 41 DLR 4. Sections 406 & 420— 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 from basis of any criminal proceeding. The proceedings are quashed. Syed Ali Mir. Vs. Syed Omar Ali 42 DLR (AD) 240. Sections 406& 420— Question of offence of breach of trust and cheating—Business transactions were going on between the complainant and the accused for a long time relating to supply of fish and the latter made payments in parts. A balance amount claimed by the complainant was not agreed on and the accused refused to pay it. This refusal to pay the balance does not constitute any criminal offence under sections 406/420 Penal Code. Islam Ali Mia Vs. Amal Chandra Mondol 45 DLR (AD) 27. Section 409— A person receiving property in a fiduciary capacity must deal with the property according to the terms of the agreement or trust. Haji Md. Mohsin Vs. State 40 DLR 431. Section 409— Two distinct parts in offence of criminal breach of trust—one is creation of an obligation in relation to the property over which there is dominion and other is misappropriation or dishonestly dealing with the property by the accused. Haji Md. Mohsin Vs. State 40 DLR 431. Section 409— Cognizance of the offence under section 409 PC taken by the Session Judge as the Senior Special Judge is a mere irregularity in registering the case as a Special Case. Haji Md. Mohsin Vs. State 40 DLR 431. Section 409— In order to prove the offence of Criminal Breach of Trust there must be the allegation of entrustment of property and misappropriation thereof. In the absence either of the two ingredients the offence is not complete. Mir Amir Ali Vs. State 45 DLR 250. Section 409— Allegation was that appellant dishonestly misappropriated 10 bags of powder milk, which was meant for distribution among the poor students—Defence version was that he did not submit any application seeking allotment of relief powder milk nor did he take delivery of them———Question arose as to whether the legality of the conviction on the ground of contradiction and insufficient evidence which necessarily calls for the scrutiny of the evidence is maintainable. HeId—”We have given our anxious consideration to the facts of the case and discrepancy in evidence as to 8 bags or 10 bags and our conclusion is this conviction cannot be sustained. Moslemuddin Talukder Vs State 42 DLR (AD) 103. Section 409— here is no merit in the submission that the prosecution has to prove its case of misappropriation of entire shortage. The accused is bound to account for every pie entrusted to him. AMA Wajedul Islam Vs. State 45 DLR 243. Section 409— Appellant deposited the amount for which he was charged for misappropriation—Co— accused having been already released on bail the bail of the appellant should not have been refused—Appeal allowed and appellant allowed to remain on ad—interim bail granted by the Appellate Division. Md. Serajul Hoque Vs. State 42 DLR (AD) 52. Section 409 read with Prevention of Corruption Act (II of 1947) Section 5(2). Sentence of imprisonment till rising of the Court—whether it is an imprisonment—An important question arose to be answered in this case. It is whether a sentence of imprisonment till rising of the Court can be said to be a sentence of imprisonment within the meaning of section 409 of the Penal Code as well as under section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). Detention till rising of the Court is imprisonment. In the light of the aforesaid dictionary meaning and judicial pronouncements I have no hesitation to hold that the detention of the accused—appellant till the rising of the Court is imprisonment within the meaning f Section 09 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) as his liberty freely to go about his business as at other times was restrained by order of the Court as he was confined in the Court precincts. Jalaluddin Ahmed Chowdhury Vs. State 41 DLR 87. Section 412— Dishonestly receiving property stolen in the commission of a dacoity—To sustain conviction for such an offence the property stolen in the commission of dacoity must be received or retained by persons other than the dacoits. Kashem Molla Vs. State 42 DLR 453. Sections 419/467/471/409— The petitioner by showing false documents induced the purchaser to enter into an agreement to purchase the house on receipt of Taka 12 lath on a plea that he would refund Taka 14 lakh in the event of failure to execute sale document. The contention of the petitioner to the effect that it was a civil dispute and that the Court of Settlement had given a final decision over all the disputes including the question of criminal liability is not sustainable. The criminal proceeding cannot be held to be liable to be quashed. Aga Kohinoor Alam Vs. State 43 DLR 95. Section 420— Appellate Court’s power to award sentence consequential to the affirmance of conviction if the trial Court imposes no sentence upon the accused prescribed under that law. Jahangir Hossain Vs. State 40 DLR 545. Section 420— It is not correct to say that in a case of cheating there Is no necessity to prove initial intention to deceive and that subsequent conduct of the accused is enough to find him guilty. Abdul Karim Vs. Shamsul Alam 45 DLR 578 Section 420— Loan taken on representation to pay dishonestly inducing a person to lend the money having no intention to repay will be an offence of cheating. Shafiuddin Khan Vs. State 45 DLR 102. Sections 436 and 148— 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 or 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. Sections 463 and 464— The circumstances, provisions of law and evidence on record show that the prosecution has failed to prove by evidence that the accused petitioners had committed the alleged offence: Forged document—When a document can be called forged—To call it forged a document must be executed with dishonest and fraudulent intention to defraud others—Such a finding is absent in lower Court judgments. The prosecution could not prove the elements of a forged document in the present case and as such the provisions of section 467 of the Penal Code cannot be invoked against the accused petitioners. Manu Mia & Sayedur Rahman Vs. State 42 DLR 191. Sections 463 and 467— Applicability, of section 179 CrPC to the offences defined section 463 Penal Code—Provisions section 463 PC analysed—Two essential ingredients of section 463 PC pointed out—] both the competent criminal Courts at Noakhali and Comilla have jurisdiction to t the offence. Sree Jagenath Chandra Bakshi Vs State 42 DLR 238 Sections 463 and 467— When the bainapatra in question was given in evidence in Court no court can, take cognizance of any offence under section 467 of the Penal Code without a complaint in writing by the court concerned or by a court to which the said court is subordinate. Sona Miah Vs. Md. Zakaria 41 DLR 433. Section 467— Where the intention of the wrongdoer either to obtain wrongful advantage for himself or to cause injury to somebody has not been specifically established conviction under section 467 Penal Code cannot be maintained. Abdul Hakim Vs. State 45 DLR 35. Section 467— Accuseds claiming title on the basis of registered document which they assert to be genuine—In such a criminal proceeding they will not get reasonable opportunity to prove genuineness of their title deed which they will get in a civil proceeding—Section 467 Penal Code is not attracted to the case. Monu Mia & Sayedur Rahman Vs. State 42 DLR 191. Section 467— Making a false document— The maker must dishonestly execute the document with the intention of causing it to be believed that such document was executed by or by the authority of a person by whom or by whose authority he knows that it was not executed. Al-haj Md. Serajuddowlah Vs. State 43 DLR (AD) 198. Section 471— Mark—sheets of SSC Examination were forged documents rendering the appellant guilty under section 471. Jahangir Hossain Vs. State 40 DLR 545. Section 493— The victim of alleged cohabitation knew that there was no marriage between her and the accused and that the latter only compromised to marry her on some future date—Such allegations made in the FIR did not come within the mischief of section 493 of Penal Code. Lukus Miah Vs. State 43 DLR 230. Section 499— Defamation defined in section 499 Penal Code. In our codified law the expression “defamation” has been defined in section 499 of the Penal Code. The exceptions are ten in number. English law of absolute privilege, whether applicable to the statements made by the parties or by the Advocates in Court proceedings in Bangladesh—Immunity having been not extended to judicial proceeding a respondent allegedly defamed would be competent to file a complaint in Court against the maker of defamatory statement—Court not to rely on Common Law of England. AY Marshiuzzaman Vs. Shah Alam 41 DLR 180. Section 499— For the accusation of defamation a separate action would lie and it will be postponed till the judicial proceeding had ended. AY Mashiuzzaman Vs. Shah Alam 41 DLR 180. Section 499— The Court of Metropolitan Magistrate had a duty to initiate a proceeding without directing the complainant to ventilate his grievances before the other Court wherein the defamatory statement has been made. AY Mashiuzzaman Vs. Shah Alam 41 DLR 180. Sections 499 & 500— Imputation made by lawyer when protected—Imputation made by a lawyer in discharge of professional duty on the character of any person in good faith and for the protection of the interest of the person making it or of any other person or for the public good will not constitute offence of defamation. In the instant case, the imputation allegedly made by the petitioner as an advocate under instruction of her client for protection of her interest cannot constitute the offence in view of exception 9 to section 499 Penal Code. Sigma Huda Vs. Ishfaque Samad 45 DLR 129. Section 500— A magistrate is not competent to file a complaint for the prosecution of a witness for making a defamatory statement in a proceeding pending before him. AY Mashiuzzaman Vs Shah AIam 41 DLR 180. Section 34- Joint liability— Joint liability of the accused for offence committed in furtherance of common intention. Participation in the commission of the offence is the essence of such common intention. Khokon Vs. The State, 8 MLR (2003) (HC) 409. Penal Code, 1860— Section 34— Joint liability— active participation necessary— Section 34 of the Penal Code, 1860 lays down the principle of joint liability in respect of commission of crime which presupposes existence of common intention and preplan. When crime is committed in furtherance of common intention each and every such person having taken active part in the commission of crime shall be equally liable to the same punishment.State Vs. Mir Hossain and others, 10 MLR (2005) (HC) 91. Penal Code, 1860— Section 34- Common intention in the commission of murder and joint Accused- Common intention as defined in section 34r of the Penal Code, 1860 implies acting in concert with preplan. The intention becomes common intention of all the accused persons when the intention of one accused is shared by other accused and all such accused are equally liable for the offence when done in furtherance of common intention. The essence of section 34 is participation in action. The State Vs. Ershad AH Sikdar and others, 8 MLR (2003) (HC) 135. Penal Code, 1860— Section 34— Joint liability— active participation necessary— Evidentiary value of confessional statement. Law is well settled that crime need not be always proved by direct ocular evidence. Circumstantial evidence may well form the basis of conviction. Accused can well be convicted on the basis of his confessional statement when found true and voluntary. Confessional statement of an accused cannot be used against other co-accused unless such confessional statement is corroborated by other independent evidence. Circumstantial evidence may also be considered as corroborative evidence. Section 34 of the Penal Code, 1860 lays down the principle of joint liability in respect of commission of crime which presupposes existence of common intention and preplan. When crime is committed in furtherance of common intention each and every such person having taken active part in the commission of crime shall be equally liable to the same punishment. State Vs. Mir Hossain and others, 10 MLR (2005) (HC) 91. Penal Code, 1860— Section 53— Forfeiture is one kind of punishment— Confiscation is not penalty but one of the modes for disposal of property in trial. The term forfeiture is distinguishable from confiscation. Forfeiture is one kind of penalty while confiscation is not a penalty as defined under section 53.Mobarakullah (Md.) and another Vs. The State, 9 MLR (2004) (HC) 208. Penal Code, 1860— Section 68 and 69— Payment of fine in installments— As there is express provision contained in sections 68 and 69 of the Penal Code for payment of fine and termination of sentence following thereof, the Appellate Division rejected the prayer for payment of fine in installments in exercise of the power under article 104 of the Constitution. Lt. General (Retd.) H.M. Ershad Vs. The State, 6 MLR (2001) (AD) 11. In a case where from the facts and circumstances and materials on record a case of right of private defence is made out, the plea of self defence is available to the accused. The court can well take this into consideration even though such defence is not specifically pleaded or half heartedly pleaded. RukhuMia Vs. The State, 8 MLR (2003) (HC) 114. Penal Code, 1860— Section 100— Exercise of self-defence in causing death of aggressor— Right of self defence can be exercised to the extent of causing death of the assailant/aggressor within the limitations as provided under section 99 of the Penal Code. When the wife inflicted injury on the male organ of the husband when he was asleep and found inflicting further injuries on his person in vital part when he woke up, the husband has been found justified in inflicting injury to his wife causing her death in exercise of right of self defence under section 100 of the Penal Code and is thus acquitted of the charge under section 302 of the Penal Code. Hasan Rony Vs. the State, 10 MLR (2005) (HC) 17. Penal Code, 1860— Section 107 and 109— Abetment of commission of offence— Unless the ingredients as enumerated under section 107 of the Penal Code are found present there cannot be an offence of abetment punishable under section 109 of the Code. Mere request to do something does not constitute offence of abetment and as such proceedings drawn there for being the abuse of the process of court is liable to be quashed. Abdur Rahman Dhali and others Vs. Tk State, 10 MLR (2005) (HC) 108. Penal Code, 1860— Section 109— Offence of abetment-Section 201- Principal accused cannot be punished under section 201. Offence of abetment is a separate and distinct offence and is punishable with the same punishment as prescribed for the principal offence abetted. When the principal charge fails conviction can not be awarded for abetment. Khokon Mridha and another Vs. Tk State, 8 MLR (2003) (HC) 70. Penal Code, 1860— Section 148 and 302/114—Offence o rioting and murder— Benefit of doubt cannot be claim as a matter of right— Doubt as to the complicity of the accused has to be established in the light of the evidence on record in remind of the judge.That certain accused is given the benefit of doubt can not be the ground for claiming the same treatment by the other accused who stands on different footing. When charge against the convict-petitioner stands proved beyond all reasonable doubt he can not claim acquittal on benefit of doubt. Moazzem Hossain Vs. The State, 6 MLR (2001) (AD) 100. Penal Code 1860— Section 149—Common object and constructive liability— When five or more persons being armed with deadly weapons and forming an unlawful assembly encircled the deceased and variously assaulted him who as a result died, each and every such accused is equally guilty of the charge of murder under section 302 committed, in furtherance of their common object as contemplated under section 149 of the Penal Code. Ishacjue Peada (Mridha) (Md.) Vs. The State, 6 MLR (2001) (AD) 296. Penal Code, I860— Section 302- Altering the charge into one under section 304 part 1 and reducing the sentence to 10 years R.I. In a case of murder where the convict-petitioner was sentenced to imprisonment for life by the trial court which has been reduced to 10 years R.I. upon altering the charge into one under section 304 part I by the High Court Division in appeal in view of the mitigating circumstance, the occurrence taking place in a bid to resist the taking away of pulse grown by the convict- petitioner, there being no illegality committed in the impugned judgment and order warranting any interference leave to appeal is refused. Emdadul Haque Vs. The State, 6 MLR (2001) (AD) 98. Penal Code 1860— Section 302/34— Conviction and sentence when based on consistent evidence calls for no interference— Where the conviction and sentence are based on concurrent findings of the trial court and the High Court Division upon proper appreciation of evidence and when no legal infirmity could be pointed out, the leave petition is rejected. Abu Jamal & another Vs. The State, 6 MLR (2001) (AD) 29. Penal Code, 1860— Section 302/34 and 396— Nature of proof— The well established principle of law is that in order to secure conviction the prosecution must prove the charge against the accused by consistent and reliable evidence. When there is no legal and reliable evidence on record as to the proof of charge beyond doubt accused cannot be convicted on any other hypothesis. The State Vs. Azim Sarder and another, 6 MLR (2001) (AD) 103. Penal Code 1860— Section 302— Charge of murder-Nature of proof-Contradictions on material points by eye witnesses make the prosecution case doubtful-Contradictions in the evidence of the eye witnesses on material points as to the manner of occurrence make the prosecution case doubtful. When the decision and findings of the High Court Division do not suffer from any misreading of the evidence, the impugned judgment and order of reversal of conviction and sentence does not call for any interference. The State Vs. Nasir Ahmed @ Nastruddin and another, 6 MLR (2001) (AD) 194. Penal Code, 1860— Section 302— Charge of murder-Legal requirement as to proof of— Evidence Act, 1872— Section 3 and 30— Evidentiary value of confessional statement— The well settled principle of law is that the confessional statement of one accused cannot be used against the other co-accused. Moreover the confessional statement recorded under section 30 is not an evidence within the meaning of section 3 of the Evidence Act, 1872. When none of the eyewitnesses of the occurrence said a single word against the convict-appellant, this is factually a case of no evidence. Therefore the impugned order of conviction and sentence which is not based on any legal evidence is set aside with a serious stricture against the learned trial Court judge.Abu Syed Vs.The State, 6 MLR (2001) (HC) 237. Penal Code, 1860— Section 302— Charge of murder— Onus of proof lies upon the prosecution— No hard and fast rule as to number of witness to be examined- Partisan witness need not always be discarded—The cardinal principle of criminal jurisprudence is that the onus entirely lies upon the prosecution to prove the charge against the accused to the hilt beyond all reasonable doubt. There is no hard and fast rule as to the number of witness the prosecution has to examine. In a case where there are huge number of witnesses, the prosecution is not required to examine each and every of them. It is enough to secure conviction if the material witnesses are examined. Partisan witnesses where in the circumstances are probable and reliable can not be discarded merely on the ground of their being partisan. Suffering the pangs of death for long time pending disposal of reference and appeal are considered to be good ground for altering the sentence of death into one of imprisonment for life. The State Vs. Md. MonirAhmed @ MomrHossain, 6 MLR (2001) (HC) 243. Penal Code 1860— Section 302- Motive as to murder is not always necessary to be proved— When there are sufficient reliable evidence establishing the charge beyond doubt, motive for the murder need not be proved. Inquest report being the part of investigation alongside the post mortem report can well be used by the court as to the condition of the dead body. Anisur Rahman Chowdhwy Vs. The State, 7 MLR (2002) (AD) 119. Penal Code, I860— Section 302- Motive when to be proved— In murder trial motive is not always essential and need not be proved by the prosecution. But when motive is alleged then the prosecution has to prove it.Salim (Md.) Vs. The State, 7 MLR (2002) (HC) 20. Penal Code, 1860— Section 302— Murder of wife by husband- Circumstantial evidence— When wife is murdered in the house of the husband while living together with the husband, the husband has the liability to explain under what circumstances his wife died. When ocular evidence is hardly possible from the neighbors or inmates of the house circumstantial evidence can well form the basis of conviction against the husband-accused. Reasonable doubt has to be adjudged commensurate to the nature of the offence. Alfazuddin Khan (Md.) Vs. The State, 7 MLR (2002) (HC) 73. Penal Code, 1860— Section 302— Charge of murder— Section 84- Acquittal on ground of insanity- Defence of insanity if taken shall have to be proved by the defence. Legal insanity when proved can be the ground for acquittal of the accused. Criminal Lunatic may be detained in asylum till cure. Nikhil Chandra Haider Vs. The State, 7 MLR (2002) (HC) 115. Penal Code, 1860— Section 302— Charge of murder— Evidence Act, 1872— Section 32— Dying declaration-Evidentiary value for conviction— Dying declaration has a special sanctity in view of the fact that a dying man as expected cannot tell lie and as such a dying declaration when considered true can alone form the basis of conviction. Order of acquittal which is perverse and is based on findings on improper appreciation of evidence need be set aside. The High Court Division in such a case is required to interfere with the order of acquittal which is shockingly unconscionable. The State Vs. Rashid Ahmed and others, 7 MLR (2002) (HC) 147. Penal Code, 1860— Section 302— Charge of murder— Acquittal of accused on proof of alibi— Evidence Act, 1872— Section 11— Acquittal on proof of Alibi-When satisfactorily established by evidence such as attendance Register that the accused was on duty in his office at the relevant time of the occurrence, the accused may be acquitted on such plea of alibi. Nurid Islam Vs. Abdul Malek and another, 8 MLR (2003) (AD) 37. Penal Code, 1860— Section 302— Murder charge in a wife killing case— Husband's liability— Husband is liable to explain as to how his wife died when both of them were residing in the same house. When the explanation as to cause of death being suicidal is proved false by medical evidence, the husband in the face of the evidence and circumstance can well be held guilty of the charge of murder. Abul Hossain Khan Vs. The State, 8 MLR (2003) (AD) 191. Penal Code, 1860— Section 302— Sentence of death commuted on ground of young age and suffering the pangs of death for long period— Commutation of sentence of death into imprisonment for life by High Court Division held perfectly justified by the apex court on consideration of age of the convict appellant, his inflicting only one injury and his being in the condemned cell for 3(three) years. Shamim (Md.) alias Shamim Sikder Vs. The State, 8 MLR (2003) (AD) 214. Penal Code, 1860— Section 302— Sentence of death is justified when death is caused with extreme brutality— Motive of murder— Motive when taken has to be proved In a case of murder motive is not always required to be proved. When there is ocular evidence of the occurrence motive is immaterial. That injuries-were not caused in the vital parts of the body and the victim died after 7 days of the occurrence is no mitigating factor for awarding lesser penalty. When injuries are caused on the less vital parts of the body with a view to prolonging the pains of death, the sentence of death has been held in such a case by the apex court to be perfectly justified. Ershad All Sikder (Md.) Vs. The State, 9 MLR (2004) (AD) 355. Penal Code, 1860— Section 302/34— Charge of murder-proof by circumstantial evidence— Sentence for 30 years is not authorized- Imprisonment for life is the proper term of sentence—When chain of events are proved by consistent witness and the calling of the deceased by the accused and the trail of marks of blood found from the P.O. house to the place where the dead body was detected constitute most strong circumstantial evidence irresistibly leading to the conclusion as to the guilt of the accused beyond all reasonable doubt. Bhola Vs. The State, 7 MLR(2002)(HC) 224. The Penal Code, 1860— (Act XLV of I860)— Section 302— Conviction on the basis of circumstantial evidence in a wife killing case is permissible when the husband fails to satisfactorily explain his conduct— Where in a case of murder of a wife it is established that at the time of occurrence both the deceased wife and husband were in the same house, the husband is bound to explain the circumstance Linder which his wife died. In the absence of satisfactory explanation the husband can well be convicted for the charge of murder of his wife on the basis of circumstantial evidence pointing at the guilt of the accused to the excisions of any other hypothesis. Giasuddin Vs. The State, 8 MLR (2003) (HC) 21. Penal Code, 1860— Section 302- Charge of murder can be reduced to that under section 304 when there is no premeditation. In the absence of premeditation, the killing of wife by husband following altercation falls to the category of culpable homicide not amounting to murder and charge can be reduced to one under section 304 of the Penal Code. Principal accused cannot be convicted for charge both under section 302 and 201 of the Penal Code. Manu Mia Vs. The State, 8 MLR (2003) (HC) 66. Penal Code, 1860— Section 302 and 34— Charge of murder— Nature of proof— In order to secure conviction and sentence in criminal case particularly in murder trial the prosecution has to prove the charges against accused beyond all reasonable doubt. Non-production of alamat such as the torch being the only means of recognition of the accused, Sketch map of the P.O. and non-examination of the Investigating officer including material C.S. witnesses without explanation render the prosecution case doubtful and as such the conviction and sentence based on discrepant evidence are held not sustainable in law. Mokbul Hossain and another Vs. The State, 9 MLR (2004) (HC) 67. Penal Code, 1860— Section 302—Charge of murder-Sentence of death commuted on ground of absence of ocular evidence and suffering the pangs of death for more than two years— When the victim wife was found with her husband last and thereafter dead body with injuries was recovered on the following day, the husband is under the obligation to explain the circumstance under which his wife died. Strong circumstantial evidence pointing unerringly at the guilt of the accused to the exclusion of any other hypothesis, can safely form the basis of conviction. Since the convict appellant suffered the pangs of death for long, the sentence is commuted into imprisonment for life. State Vs.Abdur Rahim. 9 MLR (2004) (HC) 309. Penal Code, 1860— Section 302— Punishment for murder— Section 34— Common intention in the commission of offence with active participation— When evidence are contradictory and discrepant— Conviction thereon not sustainable-Sentence of either death or imprisonment for life in order to be sustainable must be based on consistent and reliable evidence. When evidence are discrepant, sharply contradictory and suffer from legal infirmity can not form the basis of conviction. In the absence of pre-plan and active participation in the commission of the offence section 34 of the Penal Code is not attracted. Deviz and others Vs. The State, 9 MLR (2004) (HC) 344. Penal Code, 1860— Section 302— Punishment for murder— Normally in a case of murder death is the appropriate sentence. Alternative sentence of imprisonment for life may be awarded when there are mitigating circumstances such as in the instant case altercation between the convict and the deceased and the age of the convict being at the prime of 25 years. In that view the sentence of death is commuted into imprisonment for life. State Vs. Adam Khan 9 MLR (2004) (HC) 405. Penal Code, 1860— Section 302— Husband's liability in a wife killing case— Husband has the liability to explain the circumstance under which his wife died when both of them were residing in the same house at the time of the occurrence. When the explanation offered is found false and the wife is found to have died due to injuries Penal Code, 1860— which were ante-mortem and homicidal in nature the conviction and sentence of the husband is held to have been perfectly justified in the face of the attending circumstances. Sheik Moksed Ali Vs. The State, 20 MLR (2005) (AD) 27. Section 302 and 201— Circumstantial evidence can well form the basis of conviction and sentence— Motive— Prosecution is not always required to prove the motive of murder— Circumstantial evidence unerringly pointing at the guilt of the accused and when the same is incapable of any other hypothesis other than the guilt of the accused can safely form the basis of conviction and sentence. Court has to conclusively decide the guilt or otherwise of the accused in clear terms but cannot leave the accused to be punished by Allah. This is peculiar and unknown method which the apex court strongly disapproved and upon reassessment of the evidence on record convicted accused respondent since acquitted by the High Court Division.State Vs. Khondker Zillul Bari and others, 10 MLR (2005) (AD) 175. Penal Code, 1860— Section 302/34— Causing death of a person without common intention does not attract Section 304— Culpable homicide not amounting to murder— Wife's liability in a husband killing case—It is well settled that in a wife killing case husband owes an obligation to explain the circumstance under which his wife died when they were residing in the same house at the time of the occurrence. Similarly in a case of murder of the husband the wife has also a liability to explain the circumstance under which her husband was killed when they were residing in the same house at the time of the occurrence. In the absence of common intention of committing the murder, section 34 of the Penal Code is not attracted. Again when the ingredient of the culpable homicide amounting to murder is absent, the offence is punishable under section 304 of the Penal Code. Extra judicial confession when found true and voluntary can form the basis of conviction. State Vs. Jahanara Begum and another. 10 MLR (2005) (HC) 11. Penal Code, 1860— Section 302— Charge of murder to be proved beyond all reasonable doubt— Since the charge of murder involves capital punishment, the proof in support thereof must be based on consistent and reliable evidence. When the identity of the dead body is not established, the evidence are inconsistent and are not worthy of credence, the conviction and sentence passed thereon cannot be sustainable in the eye of law. Nazir Hossain alias Chhota Kachua Vs. The State, 10 MLR (2005) (HC) 169. Penal Code, 1860— Section 302— Husband can not be saddled with the liability of murdering his wife when it is established that he was not present in the p.o. house at the time of occurrence— It is well settled that the husband has to explain as to how his wife was killed when the wife was living with the husband in the p.o. house at the relevant time. But when it is established that he was not in the p.o. house at the material time the husband can not be saddled with the liability of killing his wife and in that view of the matter the convict-appellant in the instant case is acquitted .Abu Taher Vs. The State, 10 MLR (2005) (HC) 282. Penal Code, 1860— Section 154— Delay in lodging F.I.R— Legal consequence— Section 302— Charge of murder— proof beyond all reasonable doubt— Sustainability of conviction and sentence when evidence are contradictory and suffer from improbability— Non-appealing convict may be allowed the benefit of acquittal passed in appeal preferred by co-convicts—When not satisfactorily explained the inordinate delay in lodging FIR is fatal to the prosecution which casts adverse reflection on the prosecution as to concoction and embellishment. To secure sustainability of conviction and sentence the same must be based on consistent and reliable evidence. The burden of proof entirely lies upon the prosecution to prove the charge beyond shadow of all reasonable doubt. When the evidence of the ocular witness are sharply contradictory and suffer from legal infirmity and fall far below the level of credence the conviction and sentence passed thereon cannot be sustained in the eye of law. It has now become ccepted principle that the benefit of lie judgment of acquittal can be extended to non-appealing convicts. Kalam Tahikder and others Vs. The State, 10 MLR (2005) (HC) 264. Penal Code, 1860— Section 302— Sentence of death is the proper sentence in a case of brutal murder in the absence of any mitigating factor— Confessional statement true and voluntary can form the basis of conviction— It is not necessary that commission of offence must always be proved by ocular evidence. Circumstantial evidence unerringly pointing at the guilt of the accused can well form the sole basis of conviction. Confessional statement of accused recorded under section 164 Cr.P.C. when found voluntary and true can well be the basis of conviction. In a case of brutal murder sentence of death is the proper punishment which should be awarded unless there is any mitigating factor.Kalu Mia Vs. The State, 10 MLR (2005) (HC) 397. Penal Code, 1860— Section 302— Charge of murder and the proof thereof— Charge need not always be proved by ocular evidence. Circumstantial evidence unerringly pointing at the guilt of the accused can well form the basis of conviction. Husband has heavy liability to explain the circumstance under which his wife was murdered when they were living in the same house at the time of the occurrence. In the absence of any satisfactory explanation from the husband, the medical evidence together with the absconsion of the accused immediately after the occurrence and the chain of other attending circumstance unerringly pointing at the guilt of the convict-accused the learned judges of the High Court Division having found the conviction and sentence perfectly justified confirmed the sentence of death. State Vs. Md. Delwar Hossain Faraji condemned prisoner, 10 MLR (2005) (HC) 375. Penal Code, 1860— Section 302— Sentence for charge of murder may be either death or imprisonment for life— Section 34 and 109— Common intention and abetment operate in two different situation— Section 237 Cr.P.C— Punishment may be imposed for different offence when proved though not charged there for— When charge of murder committed with brutality is established the death penalty is appropriate. Where in a case mitigating circumstance exists alternative sentence of imprisonment for life would be the proper sentence. Section 34 is attracted when the accused in furtherance of their common intention commit the murder. In case of section 34 participation in commission of offence is the constituent ingredient while section 109 is attracted where conspiracy and abetment in the commission of offence is done. Accused may be convicted for the offence proved as provided under section 237Cr.P.C. even though the charge was not framed therefore. Ershad AH Sikdar and others Vs. The State, 9 MLR (2004) (HC) 192. Penal Code, 1860— Section 304 Part-1— offence of culpable homicide not amounting to murder—Legal effect of non-examination of the I.O.— Intention to cause bodily injuries likely to cause death may be gathered from the nature of weapon used and the manner of inflicting injuries. The Court, has to give its finding while fixing the offence under section 304 part-1 of the Penal Code. When the offence is proved with consistent evidence of ocular witness and the accused is not prejudiced the non-examination of the investigating officer is not fatal for the prosecution. Nasir Howlader Vs. The State, 9 MLR (2004) (HC) 99. Penal Code, 1860— Section 304— Culpable homicide not amounting to murder— Procedure of sentencing in case of the accused being in long custody—In the absence of common intention to cause death it is culpable homicide not amounting to murder punishable under section 304 of the Penal Code. The custody of the accused for long time pending trial or hearing of appeal may be taken into account and deducted from the total sentence to be awarded.State Vs. Abdul Barek and others, 7 MLR (2002) (AD) 17. Penal Code, 1860— Section 304— Alteration of charge under section 302— Where mitigating circumstances are present— When the victim died as a result of injury inflicted upon his person by the accused in occurrence arising out of quarrel offering sudden provocation, the appropriate charge will be under section 304 part II of Penal Code for the offence of culpable homicide not amounting to murder. Accordingly the charge u/s 302 is altered and the sentence is reduced. Nabir Chandra Chowdhury and others Vs. The State, 6 MLR (2001) (AD) 256. Penal Code, 1860— Section 304— Charge of culpable homicide has to be established by cogent and acceptable legal evidence— No moral conviction is sustainable— Conviction must be based on cogent and acceptable legal evidence. There is no room in criminal jurisprudence for moral conviction. Habez Md. Peru Kazi Vs. The Stale, 7 MLR (2002) (HC) 333 Penal Code, 1860— Section 304 Parte II, 342, 448/149— Charge of culpable homicide not amounting to murder— The cardinal principle of criminal justice is that the charge against the accused must be proved beyond shadow of all reasonable doubt in order to secure conviction. Though it is permissible in law that an accused may be convicted on the basis of evidence of solitary witness the rule of produce demands corroboration thereof by independent witness when there is admitted existence of enmity between the parties. Non-examination of neutral witness casts adverse reflection on the credibility of the prosecution case which took place in a free fight between rival groups of hundreds of people. The guilt or innocence of accused must be ascertained on the assessment of the totality of evidence and no such conclusion should be drawn on the basis of isolated scrutiny of evidence. Niirul Islam and others Vs. The State, 10 MLR (2005) (HC) 416. Penal Code, 1860— Section 324— Piece of stone when used to cause injury is weapon of offence— Piece of stone when used to cause injury on vital part of body is a weapon of offence. Prosecution has to prove the charge. Defense has no obligation. Mashuq Mia © Iqbal Vs. The State, 9 MLR (2004) (AD) 372. Penal Code, 1860— Section 326A- Grievous hurt caused by acid throwing or corrosive substance- Punishment therefore-Causing grievous hurt such as disfiguring face and body permanently by throwing acid or corrosive substance is heinous offence not only against the victim but also against humanity. Punishment for such offence must be deterrent, otherwise legislative intent would be frustrated. Dulal Modhu Vs. The State, 9 MLR (2004) (HC) 53 Penal Code, 1860— Section 21— Public Servant— Section 332— DESA Employee is Public Servant— Victim Abdul Malek an employee of DESA is a public servant within the meaning of section 21 clause 12(b) of the Penal Code and as such the charge under section 332 of the Penal Code has been perfectly justified warranting no interference. Taleb Hossain @ Abu Taleb Hossaln Vs. The State, 6 MLR (2001) (AD) 219. Penal Code 1860— Section 363— Offence of Kidnapping— Consent of minor is immaterial— When it is proved by consistent evidence that the minor victim girl was kidnapped by enticement, the conviction and sentence awarded upon the accused are perfectly justified. The consent of the minor is immaterial and is of no legal consequence. Abdul Karim Vs. The Stale, 7 MLR (2002) (HC) 341 Penal Code, 1860— Section 364— Husband's liability in wife missing case is the same as in the case of wife killing— The husband is under the obligation to explain satisfactorily the circumstances under which his wife is missing when at the relevant time she was living with him in the same house. The same principle of the wife killing case as to the husband's liability is similarly applicable to a wife missing case. Abdul Majid Vs. The State, 8 MLR (2003) (HC)313. Penal Code, 1860— Section 376— Charge of rape— Evidence of the victim even though not corroborated by eye witness can form the sole basis of conviction— In a case of rape there can hardly be any eye witness of the occurrence. When the evidence of the victim woman appears to be reliable in the absence of any proof of enmity and no inconsistency thereof transpired, such evidence of the victim alone may form the basis of conviction. When the conviction and sentence of the convict-petitioner are based on the concurrent findings of the trial court as well of the High Court Division and when such findings do not suffer from any legal infirmity, no interference is called for. Abu Taker Mia alias Taker Mia Vs. The State, 6 MLR (2001) (AD) 77. Penal Code, I860— Section 376- Punishment for offence of rape—Alteration of conviction and sentence from section 4(c) of the Ordinance 1983 to section 376 of the Penal Code— In a case which was tried by the Special Tribunal and the accused was convicted and sentenced for offence of rape and when subsequently it was found that the offence should have been tried by the Session Judge where the same person presiding over both the Session Court and Tribunal, the conviction and sentence has been altered from section 4(c) of the Ordinance, 1983 into one under section 376 of the Penal Code having regard to the legislative intent and purpose instead allowing the ends of justice frustrated by technicalities. It is further held by the High Court Division that conviction and sentence can well be based on the solitary evidence of the prosecutrix if it inspires the confidence of the Court. Section 134 of the Evidence Act, 1872 does not provide for any particular number of witness to prove any particular charge, the golden rule of evidence being that evidence has to be weighed but not counted. Shibu Pada Acharjee Vs. The State, 8 MLR (2003) (HC) 275. Penal Code, 1860— Section 376- Offence of rape-Evidentiary value of the prosecutrix-when corroboration is required- In a case of rape where the prosecutrix is the sole witness of the occurrence, in the absence of surrounding circumstances, her evidence must be scrutinized closely and corroboration by independent witness becomes necessary. The absence of mark of violance in the person of the victim makes the prosecution case doubtful. Masad Mia (Md.) Vs. The State, 9 MLR (2004) (HC) 28. Penal Code, 1860— Section 382— Commission of theft is pre-requisite of an offence— Non-appealing convict may be allowed the benefit of acquittal. Unless there is a case of theft with preparation to cause death or hurt to escape, section 382 of the Penal Code is not attracted. When the prosecution case is found wholly not proved, the non-appealing convict may also be given the benefit of acquittal. Mafizid Islam Vs. The State, 7 MLR (2002) (HC) 108. Penal Code, 1860— Section 395 and 397- Conviction to be based on legal evidence— When prosecution fails to bring home the charge under section 395 and 397 of the Penal Code by any cogent evidence as to the identity and participation of the accused in the commission of the offence, no conviction can be passed on basis of surmise or any other hypothesis. Belal alias Belial and 2 others Vs. the State, 7 MLR (2002) (HC) 27. Penal Code, 1860— Sections 395 and 397— Offence of dacoity— When enmity between the parties from before the occurrence exists, corroboration of partisan witness by independent witness is necessary— Although there is no rule of law requiring corroboration by independent witness, the rule of prudence demands corroboration of partisan witness by independent witness particularly when enmity between the parties exists from before the occurrence. Mahmudul Huq and others Vs. The State, 7 MLR (2002) (HC) 105. Penal Code, 1860— Section 396— Charge of dacoity with murder- Nature of proof— Confessional statement of one accused cannot form the sole basis of conviction against other co accused without independent corroborative evidence. Therefore, the conviction based on such confessional statement alone is not sustainable in the eye of law. The State Vs. Md.Tuku Biswas, 8 MLR (2003) (AD) 33. Penal Code, 1860— Section 399- Offence of preparation to commit dacoity- Though there is express provision for offence of preparation to commit dacoity, there is no provision in the Penal Code as to offence of preparation by persons below 5 in number to commit robbery. The Penal Code has been suggested to be amended to this direction. KaramAli Vs. the State, 7 MLR (2002) (HC) 79. Penal Code, 1860— Section— 406 and 420— Loan money does not constitute offence— Code of Criminal Procedure, 1898— Section 561A— Quashment of proceedings-to prevent the abuse of the process of court— Unless there is inducement and entrustment loan taken for business purpose and failure or refusal to repay the same is a civil liability and does not constitute offence punishable under section 406 and 420 of the Penal Code. Therefore the proceedings being abuse of the process of Court are quashed. Abdul Mannan Sarker (Md.) Vs. The State, 6 MLR (2001) (HC). 279. Penal Code, 1860— Section 406— Dishonest misappro¬priation— When the convict appellant took the shallow machine from the Krishi Bank against loan but subsequently sold away the same without permission of the Bank and adjustment of outstanding dues in violation of the pledge, this amounts to dishonest misappropriation and breach of trust punishable under section 406 of the Penal Code, 1860. Kalimidlah Topadar (Md) Vs. The State and another, 8 MLR (2003) (AD) 39. Penal Code, 1860— Section 406/420— Where the initial intention of cheating is absent, prosecution under section 420 does not lie— Dispute relating to claim of payment of outstanding dues arising from long business transaction is of civil nature which can be decided in civil suit. Criminal proceedings thereon being abuse of the process of the court are quashed. Delwvar Hossain Sowdagar (Alhaj) Vs. The State represented by the Deputy Commissioner Chittagong and others, 8 MLR (2003) (HC) 183. Penal Code, 1860— Section 409/109— Misappropriation by criminal brench of trust— Prevention of Corruption Act, 1947— Section 5(2)— Offence of criminal misconduct by abuse of official position— In a case where the Minister and the Secretary acted merely on the recommendation of tender committee, they are not liable for any commission of offence, if any, committed by the members of the tender committee. When no offence is disclosed either in the FIR or in the charge sheet, the proceedings initiated thereon being abuse of the process of the court are held by the apex court to have been rightly quashed by the High Court Division.State Vs. Mohammad Nasim and others, 10 MLR (2005) (AD) 213. Penal Code, 1860— Section 409 and 109— To constitute offence the constituent ingredients must be present— Prevention of Corruption Act, 1947— Section 5(2)— Punishment for criminal misconduct— Merely doing some routine work without entrustment of the money in question no offence of abetment is committed— To constitute offence punishable under section 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, there must be entrustment and dishonest misappropriation of property by abuse of the official power. Mere doing some routine work by way of making entry in cash book of certain amount by the Secretary of Union Parishad under direction of the chairman who enchased the cheque and the money was never entrusted to the convict appellant and there being no evidence of complicity and involvement with the alleged misappropriation or abetment thereof on the part of the convict appellant, the conviction and sentence has been held by the High Court Division as not sustainable in law.Moslem Uddin (Md.) Vs. The State, 10 MLR (2005) (HC) 199. Penal Code, 1860— Section 409— Charge of Misappropriation— Prevention of Corruption Act, 1947— Section 5(2)— Criminal Misconduct by Public Servant— Charge of misappropriation under section 409 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 has to be established with consistent and cogent evidence in order to secure conviction of accused public servant. In the case of misappropriation in relation to earth work the measurement book is the relevant evidence to establish the charge. When the measurement book is not produced and the evidence so brought on record are discrepant, no conviction in such a case is held to be sustainable. Zahirul Haq (Md.) and another Vs. The State, 7 MLR (2002) (HC) 458. Penal Code, 1860— Section 418— Making licensing agreement on unsolicited offer does not constitute offence under section 418— Prevention of Corruption Act, 1947— Section 5(2)—Criminal misconduct— constituent elements— When the allegations do not constitute offence under section 418 of the Penal Code read with section 5(2) of the Prevention of Corruption Act the proceedings initiated thereon being abuse of the process of the court are quashed.Mohammad Nasim and another Vs. The State, 9 MLR (2004) (HC) 364. Penal Code, 1860— Section 420— Ingredients constituting the offence— When the offence under section 420 of the Penal Code, 1860 prima facie is disclosed in the petition of complaint the proceedings drawn thereon cannot be quashed under section 561A Cr. P.C. on the plea of the transaction being civil in nature. Fouzia Begum © Rina and others Vs. Md. Azizul Bari and another, 8 MLR (2003) (AD) 63. Penal Code, 1860— Section 466, 468 and 471— Offence of forgery— Necessary evidence— When not brought on record — Retrial ordered— When the vital documents are not brought on record and marked exhibits and the vital witness are not examined in the face of the offence involving great public importance retrial of the case is directed to comply with the necessary requirements of law. Sirajuddin Sheikh (Md.) Vs. The State, 6 MLR (2001) (HC) 171. Penal Code, 1860— Section 468— Unless the allegation falls within the definition of forgery as defined under section 463, there is no offence constituted as punishable under section 468—In order to be punishable under section 468 of the Penal Code, the allegation must fit in the definition of forgery under section 463. Merely executing a document containing false statements without false personating, does not constitute offence punishable under section 468 of the Penal Code. Ibrahim Ali (Hazi) Vs. The Slate, 7 MLR (2002) (AD) 235. Penal Code 1860— Sentence- To be proportionate— Awarding sentence must be proportionate to the nature and gravity of the offence and serve as deterrent to the potential offenders. The State Vs. Ershad Ali Sikdar and others, 8 MLR (2003) (HC) 137. Probation of Offenders Ordinance Probation of Offenders Ordinance Section 5(2) The purpose of probation under section 5(2) of the Ordinance is to prevent a repetition of the same offence or a commission of other offences by the offender and for rehabilitating him as an honest, industrious and law abiding citizen. Since the rationale for probation under the Ordinance, 1960 is to facilitate social reintegration and fostering rehabilitation, Courts should consider relevant factors before passing any probation order. For adult offenders, the factors are - age, character, antecedents or physical or mental condition of the offender, the nature and gravity of the offence and the conduct of the offender during the trial. In narcotic drug related offences, it is desirable that the dope test of the offender is carried out. The result of the test should be considered along with other factors in passing the order. If the Court considers it suitable it should direct the concerned Probation Officer to submit a 'Pre-Sentence Report' (PSR) or antecedent report before making the order. [73 DLR 89] Probation of Offenders Ordinance over 1000 Section 2(e) and 5 A probation order would be most apt and suitable since it will have the likely effect of deterring the convict-petitioner from committing further offence within the period of probation, which will also allow his rehabilitation as an honest, industrious and law-abiding citizen, which is the intent and purport of the Ordinance......(28) [73 DLR 89] Probation of Offenders Ordinance (XLV of 1980) Section 5(2) Being empowered by section 5(2) of the Ordinance, this Court imposes the following conditions upon the petitioner which will continue during the probation period: (a) The petitioner shall take care of his family members who are dependent on him and maintain the family bonding. (b) The petitioner shall take care of his aged mother who lives with him. (c) The petitioner shall ensure the progress of institutional education of his school going daughter and son. (d) The petitioner must not marry-off his daughter before she attains the legal age. (e) The petitioner shall not use and/or consume narcotic drugs referred to in the first Schedule of the Narcotics Control Act, 1990 (Class A, B and C narcotic drugs) unless prescribed by registered doctor in accordance with the provisions of section 13 of the Act, 1990. (f) Dope test of the petitioner in respect of Class A, B and C narcotic drugs shall be carried out every six months during the probation period. The first dope test, shall be carried out immediately upon receipt of this order. The Association for Offenders Correction and Re-habilitation, shall bear the cost of dope. testing. If the petitioner tests positive, the probation order shall cease to have effect immediately provided the same is covered by section 13 of the Act, 1990. ......(31) [73 DLR 89] Probation of Offenders Ordinance Section 7 If the petitioner fails to observe any of the conditions and/or conditions of his bond, the trial Court shall proceed with the matter in accordance with the provisions of section 7 of the Ordinance and the probation order shall cease to have effect and the petitioner shall be sent to the jail to serve the remaining portion of sentence of imprisonment and he will also be liable to pay the fine. [73 DLR 90] Real Estate Development and Management Act Real Estate Development and Management Act (XLVIII of 2010) Section 36 If any dispute is arises regarding failure of the developer to transfer the landowner's portion in time, it must be resolved under section 36 of the Act by Arbitral Tribunal or by the Court not by RAJUK since the disputed question involves violation of the terms and conditions of the contract made between the parties. RAJUK cannot deny for according sale permission to the developer to transfer the portion of their part to any third party only on that ground without any stay order from any competent court or authority under the law. [73 DLR 147]